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 (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 and Parties

OSHAWA COURT FILE NO.: FC-23-13 DATE: 20231031

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society Farrah Manji, for the Applicant Society Applicant (the “Society”)

- and -

D.F. On her own behalf Respondent Mother

- and -

A.V. Ann Velez, for the Respondent Father, A.V. Respondent Father

- and -

C.S. On his own behalf Respondent Father

HEARD: October 6, 2023

Also in attendance: Sandra Grant, counsel for the children Also present for part of the attendance: Sandra Scovino, with the maternal great grandparents, Mr. and Mrs. A.

REASONS FOR DECISION

JUSTICE ALEX FINLAYSON

PART I: NATURE OF THIS DECISION

[1] This is my ruling on costs related to the motions that this Court heard on May 12, June 9, July 10 and July 23, 2023: see DCAS v. D.F. and A.V. and C.S., 2023 ONSC 4804 (the “August 21, 2023 Decision”; see also Durham Children’s Aid Society and D.F., 2023 ONSC 4994 (the “Supplementary Decision dated September 1, 2023”)). This ruling should be read in conjunction with these two, prior decisions of this Court.

[2] This is also my ruling on a second motion, now brought by Mr. and Mrs. A., the children’s maternal great grandparents (the “great grandparents”), respecting their party status in this proceeding.

[3] Lastly, in this decision, I make certain other orders on consent, discussed at the last appearance on October 6, 2023. Those Orders relate to the ongoing conduct of this case.

PART II: COSTS

[4] The Court received written costs submissions from A.V. and the Society. It heard supplementary oral submissions on October 6, 2023, too.

[5] A.V. seeks costs against the Society in the amount of $1,789.92, inclusive of HST, “with respect to wasted expense resulting from the Society’s procedural mistakes in its approach to police records evidence leading up to the temporary Care and Custody Hearing on July 31, 2023…” As A.V. only claims costs at the legal aid rate, I do not need to decide whether it would have been reasonable for A.V. to claim costs at his counsel’s regular hourly rate, notwithstanding the legal aid retainer. The Court takes no issue with the very reasonable quantum of costs claimed, or the time that A.V.’s counsel spent preparing.

[6] Pursuant to rule 24(3) of the Family Law Rules, the Court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. However rule 24(2) removes the presumption of success in rule 24(1) that normally applies in costs determinations, where as here, the case is a child protection case, or where the party claiming costs, or defending against a costs claim, is a government agency. Rule 2(1) defines a “government agency” as the Crown, a Crown agency, a municipal government or agency, a children’s aid society or any other public body.

[7] At ¶ 13 of Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, Chappel J. writes:

The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.

[8] Nevertheless, children’s aid societies are not immune from costs claims. At ¶ 14, Chappel J. lists a number of principles that apply when costs are claimed against a children’s aid society. They are:

(a) Again, child protection agencies do not enjoy immunity from a costs award;

(b) The starting point in analyzing a claim for costs against a child protection agency is that special approach set out in ¶ 13;

(c) A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome;

(d) The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency;

(e) Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner;

(f) Important factors to consider in deciding whether costs against a Society are appropriate include the following:

• Has the Society conducted a thorough investigation of the issues in question?

• Has the Society remained open minded about possible versions of relevant events?

• Has the Society reassessed its position as more information became available?

• Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

• In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.

[9] Citing these factors, A.V. argues that the Society made procedural missteps. He argues he is entitled to costs because:

(a) The Society chose to withhold, or postpone producing relevant information in the police records, and that was a procedural misstep;

(b) The Society did this in concert with the Durham Police, motivated to save time and resources, and not to protect children;

(c) The Society took the position that an interim production motion was required, but this Court found it to have been unnecessary;

(d) This Court already warned the Society against this practice in DCAS v. G.S., 2022 ONSC 547;

(e) After the Court ordered production on July 10, 2023, the Society then attached all the police records, with no explanation or summary as to what they were supposed to prove, or what specific statements were being relied on for the truth of their contents, and that caused additional costs; and

(f) The Society’s conduct delayed the full assessment of A.V.’s plan.

[10] A.V.’s arguments are largely based on the Court’s findings, already made in the August 21, 2023 Decision. With the exception of his criticism of the Society for attaching all of the police records to an affidavit after the Court’s production Order, [1] the Court agrees with A.V.’s application of the principles to the evidence and circumstances before the Court.

[11] However, I take four other clusters of facts into account, in reluctantly dismissing A.V.’s claim for costs.

[12] First:

(a) although this Court in its August 21, 2023 Decision found that neither the consent of the Durham Police, nor a production motion, were required, as a precondition for the Society to use in this litigation the police occurrence reports it received pursuant to the police’s duty to report; and

(b) while this Court previously addressed a similar issue in DCAS v. G.S.;

this Court is still prepared to acknowledge that the Society asked the Durham Police for its consent. The Society made some effort here. The Durham Police refused to provide that consent. For this, and a number of other reasons set out in the August 21, 2023 Decision that I need not repeat here, the Durham Police contributed to the procedural missteps in this case.

[13] Second, A.V. is legally aided. He will not directly financially benefit from a costs award. Any costs ordered will not be paid to him, to indemnify him for any financial outlay to fund the litigation. Instead, any costs ordered would go from the Society to Legal Aid Ontario; in other words, a financial transfer from one source of public funding to another. While that will normally not be a good reason, not to order costs, when costs are otherwise warranted, I mention this to focus in on what the point of costs would actually be in this case.

[14] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867 ¶ 10. The principal purposes of a costs award here would be to “discourage and sanction the inappropriate behaviour of a litigant”, in this case an institutional litigant, and to promote the just dealing of the cases that come before the Court.

[15] I find that these two objectives have already been achieved. The Court does not now need to make a costs order to reinforce these points, because:

(a) In its written submissions, the Society has thanked this Court, for the guidance and direction that it provided in the August 21, 2023 Decision; and

(b) Most importantly, the Society has changed its practice respecting the withholding of information from the Court. Since the release of the August 21, 2023 Decision, the Society is now, in other cases, providing the kind of information that it withheld in this case (and in DCAS v. G.S.) This Court already noticed this in other cases that have come before it, between the release of the August 21, 2023 Decision and the receipt of the costs submissions.

[16] Third, Legal Aid Ontario and children’s aid societies each serve, different, yet very important public purposes. To discharge their mandates, they need resources. Although the costs claimed in this case are modest, a costs order would still take away resources from one source of public funding and transfer them to another. While it was already obliged under the CYFSA to provide services to this family, this Court has also nevertheless noticed, that after the release of the August 21, 2023 Decision, Ms. Hobbs immediately started to invest the time and effort to help A.V. and J. Had the Society not immediately taken the subsequent steps that it took, my determination about costs may have been different.

[17] The Society has committed to providing funding and resources to A.V. and J. In two instances, it is paying for more expensive services, to avoid the delay that may be associated with their publicly funded equivalents and wait lists. In particular, the Society has committed to funding counselling for the child. Counselling is starting right away. It has also committed to pay for a private psychoeducational assessment for J., given the educational issues raised. The Society is doing this, not just to help the child himself, but to help A.V. better his plan, with a view to the child J. coming out of care. As set out in ¶ 3(f) of the Supplementary Decision dated September 1, 2023, the Society has also undertaken to help A.V. and his mother with some rent, to enable them to secure larger accommodations.

[18] Fourth, the Court accepts the Society’s submission, that A.V.’s behaviour has not been beyond reproach. This Court already made findings about that in the August 21, 2023 Decision. To that, the Court adds that the behaviour of all of the parents, and the great grandparents for that matter, made an already difficult situation, much worse.

[19] In conclusion, this case remained outside the ambit of a protection application for far too long. When the Society brought it, the case started out on a very wrong footing. However, having regard to the ameliorative steps taken after the release of the August 21, 2023 Decision, the Court will not take away resources from the Society through a costs order, even if the amount claimed is quite modest. For the various reasons set out above, and despite the fact that the application of many of the factors in Children’s Aid Society of Hamilton v. K.L. and T.M. militate in favour of ordering costs, the Court will reluctantly dismiss A.V.’s costs claim.

[20] This was a close call. As such, the Court does not dismiss the costs claim without a warning that there must not be a repeat in the future in this case, or in other cases. The problems respecting the approach taken to the police records have now come up in two cases before this Court; they have now been addressed twice. As I indicated in the August 21, 2023 Decision, this has consumed the Court’s time and resources, and has taken away time and resources that could have been expended on other families. This Court was very clear, at ¶ 267 and 268 of the August 21, 2023 Decision, about the impacts caused.

[21] The August 21, 2023 Decision also reveals that the problems in the approach to this case were not just restricted to the police records. This Court has also been clear in its August 21, 2023 Decision about the impacts of those problems, too.

PART III: THE GREAT GRANDPARENTS’ MOTION FOR PARTY STATUS

[22] In their Notice of Motion dated September 14, 2023, the great grandparents now seek an order adding them as parties to this proceeding. They have also asked to be added as parties to the case involving the new child named, B.S., if that case is transferred here. [2]

[23] The Society consents to the great grandparents’ motion. The Office of the Children’s Lawyer (the “OCL”) is not opposing the great grandparents’ motion. A.V.’s counsel stated that A.V. did not initially oppose adding the first motion concerning the great grandparents’ party status, because if the Court had placed some or all of the children in the temporary care and custody of the great grandparents, then A.V. would have taken the position, based on Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149, that the great grandparents would be entitled to statutory party status. During submissions on October 6, 2023, A.V.’s position changed mid-motion. He ultimately opposed adding the great grandparents as parties under rule 7(5). The mother, and the other father, C.S., both oppose the great grandparents’ motion. As they did before during previous hearings, they talked about conflict, and intergenerational trauma.

[24] As I have just alluded to, it is notable that this is now the second motion concerning the great grandparents’ party status in this case. The Society already brought a motion to add the great grandparents as parties, relying on Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149. This Court dismissed that aspect of the Society’s motion, for the reasons set out at ¶ 175 of the August 21, 2023 Decision. In brief, the Court did not make an order placing any of the children in the great grandparents’ temporary care and custody. According to the reasoning in Children’s Aid Society of London and Middlesex v. T.E., they did not become “parents” and therefore statutory parties pursuant to the combined operation of sections 74(1) and 79(1) of the CYFSA.

[25] The Court also observes that the great grandparents were given leave, in this Court’s Endorsements of June 10, 2023 and July 10, 2023, to file material respecting their party status, for consideration on that earlier motion. They did not do so. What transpired respecting the great grandparents’ conduct about their filing of evidence for that motion is set out at ¶ 90 to 92 of the August 21, 2023 Decision. Nevertheless, this Court gave the great grandparents another chance; it left the door open for this further motion to be brought: see ¶ 175.

[26] The great grandparents’ new Notice of Motion dated September 14, 2023 does not specify the legal basis for their claim for party status. During argument, the Court again heard submissions about the applicability of Children’s Aid Society of London and Middlesex v. T.E., this time from the great grandparents, albeit differently framed as compared to what the Society previously had argued. The great grandparents also argued to be added under rule 7(5) of the Family Law Rules, in the alternative.

A. The Great Grandparents are Not “Parents” and Therefore Not “Statutory Parties”

[27] The great grandparents argue that in its August 21, 2023 Decision, this Court made an access order in their favour. As such, they say they qualify as “parents” in section 74(1)(7.) of the CYFSA, and therefore they are statutory parties, by operation of section 79(1)(3.); see also Children’s Aid Society of London and Middlesex v. T.E..

[28] The Court rejects this argument. The great grandparents do not have a right of access to any of the children in this case. At ¶293 of the August 21, 2023 Decision, the Court granted paragraphs 2 and 3 of the Society’s Amended Notice of Motion dated July 19, 2023. That provided for access to the mother and to C.S. in the discretion of the Society.

[29] During the motion argued on July 31, 2023, at which the great grandparents and their counsel were in attendance, the OCL submitted that the child J. in particular, wanted to see his siblings regularly, and he also wanted attend church with the great grandparents, as he had been doing before. At ¶ 293(b) and (c) of the August 21, 2023 Decision, the Court gave the Society the discretion to arrange for the children to see each other regularly, and to see the great grandparents at church on Sundays, on certain terms and conditions. The Court then made a further change to that in ¶ 12 of the Supplementary Decision dated September 1, 2023, surrounding the parameters of that exercise of the Society’s discretion.

[30] Regardless, the great grandparents are not access holders under either of these Orders. The children’s contact with their great grandparents is entirely in the discretion of the Society. I see this as no different from a case in which a parent, during his or her time with the children, might choose to expose the children to other family members.

[31] And even if these orders somehow confer rights of access, at their highest, the children would be the access holders.

[32] Just as Sherr J. later did in Children’s Aid Society of Toronto v. B.H., 2023 ONCJ 376, this Court did not intend, when it dismissed the Society’s motion for party status on August 21, 2023, to simultaneously make access orders in favour of the great grandparents that would immediately re-engage statutory party status considerations. To the contrary, at ¶ 175 of the August 21, 2023 decision, the Court specifically referred to the fact that arguments were not made for party status under the Family Law Rules, when leaving the door open for further requests for relief.

[33] I agree with and adopt Sherr J.’s analysis at ¶ 66 to 69 of Children’s Aid Society of Toronto v. B.H., especially where he finds that it is appropriate for a court to turn its mind to the impact of Children’s Aid Society of London and Middlesex v. T.E. In particular, at ¶ 67, he writes:

Making these distinctions is even more important since the T.E. decision so that courts don’t inadvertently create parent and party status for a plethora of individuals who might have access with a child – some who would not even want to be parties.

B. The Great Grandparents Request to Be Added Under Rule 7(5)

[34] In regards to the great grandparents’ request to be added as parties pursuant to rule 7(5) of the Family Law Rules, there is a discretionary test that applies. It was summarized, and expanded upon by the Ontario Court of Appeal, in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 at ¶ 22-24; see also Children’s Aid Society of London and Middlesex v. H.(S.).

[35] There are five criteria, not all of which must necessarily be engaged for the test to be met. The criteria are:

(a) whether granting the relief is in the best interests of the child;

(b) whether the proceeding will be delayed or prolonged;

(c) whether granting the relief is necessary to determine the issues;

(d) whether the person is capable of putting forward a plan in the child’s best interests; and

(e) whether the person has a legal interest in the proceeding, in that an order can be made in favour or against him or her.

[36] In Catholic Children’s Aid Society of Toronto v. S. (R.D.), 55 R.F.L. 6th 132 (Ont. S.C.J.), Czutrin J. identified other factors that are a useful guide to the exercise of discretion. While he did so when considering whether to expand the participatory rights of a foster parent, the factors Czutrin J. identified are also useful in other contexts, like the one that now confronts this Court. They include a consideration of the age of the child, how the timelines in the legislation will be impacted, the stage of the case, particularly whether or not a finding has already been made, whether the caregiver will be called to testify and if so whether her evidence will be challenged, and whether the caregiver might clarify other matters relevant to the best interests of the child.

[37] When the Court applies the discretionary test, the ability of an existing party to present a plan supportive of the non-party’s position will be a significant consideration in deciding to add the non-party or not. That a non-party may have relevant evidence in a case does not elevate them from a witness to party status. And it will not be necessary for the Court to determine at this stage whether the proposed plan of the non-party will be successful; the question is whether their plan merits consideration, despite any delay in bringing it: see Children’s Aid Society of Toronto v. C.K., 2013 ONCJ 342; see also Children’s Aid Society of Toronto v. M.E., 2021 ONCJ 412.

[38] Having regard to these factors, the Court dismisses the great grandparents’ motion for the following eight reasons.

[39] First, although the plan for J.’s placement with A.V. is being considered and pursued, counsel for the OCL is concerned, about the absence of plans currently before the Court respecting A. and D. In not opposing the great grandparents’ motion, the OCL wishes to ensure that the great grandparents are able to put forward a plan for the other two children.

[40] That said, a plan with the great grandparents could come through the Society. Although the Society says it does have another kinship assessment respecting another family member in its possession, and the child welfare agency in Chatham Kent is in the process of assessing the maternal grandmother, the Society is still hoping to work with the great grandparents, to improve their plan for A and D. The OCL also has a role to play, in ensuring that all relevant evidence concerning these children, is before the Court.

[41] Therefore, the great grandparents do not need to be added as parties to this proceeding, to have their plan considered.

[42] Second, both the great grandparents, and then the Society, argued that it would be helpful for the great grandparents to receive additional information, and to be present in Court, to help them perfect the great grandparents’ plan. However, I repeat that the great grandparents were already in Court on more than one occasion, and this included during the entire motion argued on July 31, 2023. There were also served with some of the motions for productions of police records that concerned them.

[43] Before the temporary care and custody motion was argued on July 31, 2023, the great grandparents were given an opportunity to file evidence pursuant to an Endorsement of this Court, yet they did not do so in accordance with the timelines imposed by the Court. They were then given a copy of this Court’s 80-page decision of August 21, 2023, that contains many details. There is an abundance of information in the hands of the great grandparents, that they can use to better their plan.

[44] Third, the real issue is not the lack of access to information, but rather the great grandparents’ choice not to address the Court’s questions and concerns about them. In the August 21, 2023 Decision (which again the great grandparents have), this Court raised some six questions and concerns about the viability of a proposed placement with the great grandparents in the August 21, 2023 Decision. They are:

(a) questions and concerns about where the truth lies, about who in the past lived, currently lives, or will in the future live in the great grandparents’ home;

(b) questions and concerns about how the great grandparents had actually protected the children, when the children lived in their home in the past;

(c) questions and concerns about whether the great grandparents actually cared for the children in the past;

(d) questions and concerns about whether the Society had undertaken a proper clinicial assessment of the past child welfare histories of various family members;

(e) questions and concerns about the extent to which irresponsible marijuana and other drug use is occurring in the great grandparents home; and

(f) questions and concerns about the fact that the Society’s plan to place with the great grandparents was vague and non-specific.

[45] The great grandparents’ affidavit of September 13, 2023 does not address the Court’s questions and concerns in the August 21, 2023 Decision in a fulsome and satisfactory way.

[46] For example, in regards to the Court’s questions and concerns about the other residents of the home, the great grandparents have not addressed the Court’s findings beginning at ¶ 123 of the August 21, 2023 Decision. In particular, they have not responded to the finding that they were not forthcoming with the Society about the criminal charges pertaining to their grandson C.L., and the details about when C.L. lived in their home.

[47] In their affidavit of September 13, 2023, the great grandparents say that C.L. has only spent four nights in their home since August of 2020. They do not otherwise address how frequently he was there since 2020, if not on an overnight basis.

[48] The great grandparents claim that C.L. was not required to live with them; rather only in a place approved by the great grandmother as his surety. They do not say where they approved him to live, and whether he complied.

[49] The great grandparents say that the great grandmother is no longer acting as C.L.’s surety, and that C.L. is in jail. They say nothing about the period of time that C.L. will be in jail for, or their future intentions respecting making their home available for family members.

[50] In regards to the Court’s questions and concerns about how the great grandparents had acted in a protective way in the past, the great grandparents have made general statements, devoid of reference to the numerous incidents that occurred, and examples of how they intervened. For example, at ¶ 28, all they say is that in general, they removed the children from the room if the parents were arguing, they insisted that the children be taken to the doctor if they had concerns about the children’s health, and they reported protection concerns to the Society.

[51] At the same time, they also admit an inability to intervene more protectively. They write “[u]nfortunately, as great grandparents we have limited ability to prevent the parents from engaging in inappropriate behaviours, such as drug use; verbal conflict with one another; cleaning and maintaining their living space; or dealing with their mental health issues.”

[52] Once again, this evidence does not respond in a fulsome way to the Court’s various questions and concerns in ¶ 133-138 of the August 21, 2023 Decision. The lack of detail about any specific actions on the part of the great grandparents in response to specific incidents, is noteworthy and continues to be of concern to this Court.

[53] In regards to the care that the great grandparents actually provided, what the grandparents say is also very general and continues to leave unanswered questions. For example, the great grandparents have now set out some further detail about the great grandfather’s work schedule. They still say that the great grandmother works shift work. They have not provided the details. Moreover, they have not addressed the Court’s specific queries about this in ¶ 139 or 140 of the August 21, 2023 Decision.

[54] Their affidavit of September 13, 2023 otherwise describes little more than the actions of extended family members in providing care for the children. For example, the great grandparents say that after June of 2022, when the mother and C.S. moved in, they fed and changed D. They say that the parents left the children in their care when they returned from work. The frequency and time of that is not set out. They talk about camping with the children in the summer and participating in community activities. They also say that they took the children to doctor’s appointments. Importantly, the frequency and specifics of the latter are not provided. Incidentally, the Court observes that this calibre of evidence, equally does not rise to the level of having “care and control” within the meaning of rule 7(4) of the Family Law Rules: see Children’s Aid Society of Toronto v. K. (C.), 2013 ONCJ 342; see also Children’s Aid Society of Toronto v. M. (T.), 2010 ONCJ 701.

[55] In the great grandparents’ affidavit of September 13, 2023, there is some child welfare history provided set out from their perspective. But it does not add much if anything than what was previously put before the Court. Notably, the great grandmother has not addressed in any way, ¶ 158 of the August 21, 2023 Decision. The great grandparents have not addressed ¶ 162 either.

[56] Very surprisingly, in regards to the Court’s questions and concerns about drug use in the home, the great grandparents say absolutely nothing about that, in this September 13, 2023 affidavit. It is equally notable to the Court, that the great grandparents have not described their role, in particular that of the great grandmother, in the significant fight of September 2020, that is discussed in the August 21, 2023 Decision, and which coincided in time with the Society’s resumed and ongoing involvement with this family.

[57] These are just some examples of the great grandparents’ non-responses to the Court’s questions and concerns. The Court does not intend or need to repeat any further each and every statement is made in the August 21, 2023 Decision, and point out how the great grandparents’ affidavit does not address them.

[58] Fourth, although the Society argued that adding the great grandparents as parties might assist the Society to plan with the great grandparents, for example if the great grandparents were given access to additional information, this argument really originated with the great grandparents and I have addressed it above. If the Society feels that it cannot adequately prepare a plan involving the great grandparents due to its inability to provide certain information to them, then it can bring that to my attention in case management.

[59] The Society is also able to call the great grandparents to testify at an eventual hearing if it wishes, and it may call introduce the evidence it sees as necessary from other sources. At this point, this argument about the need for disclosure is entirely speculative.

[60] Fifth, I find no merit, to the argument at ¶ 31(c) of the great grandparents’ affidavit of September 13, 2023, that information was filed against them, and that allegations were made against them in open court, and that they did not have an opportunity to review or to respond to that.

[61] This argument overlaps with that above, which I have addressed. Moreover, this Court has not been asked to make a disclosure order to enable the great grandparents to present this motion. In any event, this case is not about the great grandparents, although certainly they are part of the factual matrix of this case, the appropriateness of a placement with them was squarely before the Court on August 21, 2023 and that will likely be an ongoing issue in the case given the Society’s anticipate choice to pursue a plan for a placement with them. Regardless, the Court has given these great grandparents multiple opportunities to file evidence; they chose not to file better material. Relatedly, I find counsel’s submission, that the great grandparents did not prepare more detailed affidavits to avoid making contradictory statements to other information already in the court file, not to be persuasive. That was their choice.

[62] Sixth, paragraph 5 of the great grandparents’ affidavit is particularly noteworthy. There, the great grandparents write that because “the court is supporting A.V.’s plan for J.”, they are only planning for the other three children (which includes newborn B.S.), but should something change respecting the viability of A.V.’s plan for J. then they would plan for him too. Were the Court to add the great grandparents as parties to this proceeding, then their consent respecting any Statement of Agreed Facts for J. would be required. What if they decided, that they did not like the terms of an agreement that the Society and the other parents came up with for J., that was acceptable to the Court? The great grandparents have further asked to be added as parties to this case for the new child, B.C., on an assumption that that case might be transferred to this jurisdiction. B.C. was just born. He would have had had no contact with the great grandparents whatsoever, since he was just born. As set out above, he is before another Court. On what legal basis the great grandparents were potentially going to ask this Court for party status in respect of B.C., this Court does not know.

[63] These approaches raise concerns about delay in a case where there has already been a large amount of delay particularly before this case started, but also once it got underway. There have now already been two motions about party status alone, other motions and other procedural problems.

[64] Seventh, I appreciate that the Court does not determine at this stage, whether the proposed plan of the non-party will be successful; rather just whether the plan merits consideration. However there is also no actual plan from the great grandparents before the Court in their affidavit of September 13, 2023. I previously found the Society’s plan to place with the great grandparents to be problematic.

[65] In fact, I have already found a temporary placement with the grandparents not to be in these children’s best interests for many reasons. I am again reminded of Sherr J.’s recent comments in Children’s Aid Society of Toronto v. B.H., that it is appropriate for a court to turn its mind to the impact of Children’s Aid Society of London and Middlesex v. T.E. when considering making an access order. Might that reasoning have application respecting temporary placements, too?

[66] Section 94(5) of the CYFSA requires that before placing a child in temporary care, the Court is required to consider whether it is in a child’s best interests to make an order for a placement with a relative or a member of the child’s extended family or community. Does the fact that a temporary placement with a family or community member now engages statutory party status under Children’s Aid Society of London and Middlesex v. T.E., require the Court to also consider that, and therefore how the addition of a new party or parties would impact the child’s or children’s best interests, when considering whether to make a temporary placement order?

[67] While I need not decide this precise question (because the temporary care and custody motion is already resolved), I nevertheless observe the following. Having already found, in the August 21, 2023 Decision, that it wasn’t appropriate to place with the great grandparents, for very detailed reasons, rooted in the children’s best interests, statutory party status did not follow. It seems illogical to me, that the Court would now add the great grandparents under the Rules (which test also includes best interests’ considerations), when these great grandparents had the chance, but did not file the evidence needed to address, the Court’s very specific concerns in the August 21, 2023 Decision.

[68] Eighth, the mother’s and the father C.S.’ positions, are also important. Some of what D.F. and C.S. have spoken of, sounds similar to what Sirivar J. heard in Children’s Aid Society of Toronto v. R.E., 2023 ONCJ 366.

[69] In Children’s Aid Society of Toronto v. R.E., the Toronto Society took the position that Children’s Aid Society of London and Middlesex v. T.E. automatically made a maternal aunt/kin caregiver, even though she only had the child in her care only a temporary without prejudice basis, and without the Society even needing to take steps, like bringing a motion. Sirivar J. heard some oral evidence in that case, given some procedural irregularities that occurred.

[70] At ¶ 7 and 8 of her decision, Sirivar J. then wrote:

[7] The mother’s position is that the maternal aunt should not be added as a party. In her emotional testimony, she explained that adding her sister as party would pit her against her family. Forcing them to fight each other in court will tear her family apart. The mother has an older child that was raised in what she described as a community by herself, her parents, and her siblings, as is common in their culture. She testified that he benefitted greatly from being cared for and loved by all of them. If her sister is added as a party, she worries that her daughter will not have the same benefit. She is grateful that her sister is caring for her daughter, and she is doing her best to address the challenges she faces, including finding housing, while fighting “the government”.

[8] After hearing from the mother, the maternal aunt tearfully withdrew her consent. She indicated that she did not have legal advice and that the worker told her that “the government” changed the rules such that she had to be made a party to continue caring for the child. She said that the last thing she wants is to add to the “distress” her sister is experiencing. She simply wants to care for her niece.

[71] Sirivar J. went on to find that the Society’s procedural approach to the party status issue could have constitutional implications. She wrote that “parents can be pitted against both the state and their families. The imbalance of power created by state intrusion in the life of the nuclear family is amplified by the potential emotional/psychological implications of adding family members as parties to the child protection proceeding.” Sirivar J. found that it was important, that there be a fair process to add parties, consistent with Charter values, and one that does not derogate from the Court’s ability to manage its own process and effectively manage child protection proceedings. She set out some practices that should be followed.

[72] Although Sirivar J. was dealing with and disagreed with the Toronto Society’s application of the recent TE decision, I am considering a request from the great grandparents for party status under rule 7(5), on a motion that has been properly brought. The situation before me is also somewhat different, in that I have now heard a temporary care and custody hearing, whereas the order in the case before Sirivar J. was still a without prejudice one.

[73] But I nevertheless note some similarities. This case before me it is still at its early stages. No finding of protection has yet been made. D.F. and C.S. both raised family conflict and intergenerational issues as reasons in opposing this motion. They do not even have lawyers yet. D.F. has not responded to the evidence before the Court, at all. Although C.S. previously filed some evidence for the temporary care and custody hearing on his own, neither of these parents filed affidavits in response to this particular party status motion. This Court is continuing to attempt to intervene with representation (see below).

[74] In the totality of the circumstances, I do not intend to expand the scope of this litigation and the conflict in it, by adding the great grandparents as parties using the discretion in the Rules.

PART IV: OTHER ISSUES

[75] On October 6, 2023, I advised the parties I would make additional orders based on the other matters discussed that day. Counsel to please advise me if I have omitted any of these items.

PART V: ORDERS

[76] Based on the forgoing:

(a) A.V.’s request for costs against the Society is dismissed;

(b) The great grandparents motion to be added as a party to this proceeding is dismissed;

(c) The Court requests that the Society notify Mr. Jenkins or someone else at Legal Aid Ontario, and the mother’s lawyer representing her in the matter before the Court in Chatham Kent, about the next return date in this matter, already set for December 12, 2023 @ 12 PM by zoom. The Court requests that they be in attendance so that there can be a discussion about representation for the mother and for C.S. in this proceeding;

(d) On consent of the Society, the OCL and A.V., the Society shall proceed with J.’s psychoeducation assessment with Dr. P. or her designates at the Thought Centre;

(e) On consent of the Society, the OCL and A.V., counselling for J. shall begin at the Therapeutic Family Care Program;

(f) As already orally indicated on October 6, 2023, the Society has the discretion to send J. on extended visits with his father pending the return date; and

Based on the Society’s and A.V.’s consent, the requirement in ¶ 291(i) of the August 21, 2023 Decision is lifted, that if J. visits his half-brother and cousins at N.J.’s home, that the father or the paternal grandmother must also be present. However, also on consent, J. shall not be left for an overnight in N.J.’s home at this time.

Justice Alex Finlayson Released: October 31, 2023

[1] When the Court granted the Society’s motion for the production of police records on July 10, 2023, it directed the Society to file all of these productions. The Court ordered that, given its concerns about the prior withholding of information. Although the Society (and the Durham Regional Police Service) were responsible for having created the circumstances in which the Court issued this direction, I will not now sanction the Society for have complied with the Court’s direction.

[2] As set out in the Supplementary Decision dated September 1, 2023, that child is before the Court in Chatham-Kent. As of the October 6, 2023 appearance, the Society advised this Court that that matter is not being transferred to this jurisdiction, at this time.