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-22-CP69

DATE: 2023/02/03

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 M.B. (DOB: [...], 2013), S.B. (DOB: [...], 2016), Z.B. (DOB: [...], 2019)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

S.B-M. (Mother)

– and –

D. B. (Father)

– and –

L.Z. (seeking party status)

Respondents

Mark Hecht, for the Applicant

Maryn Marsland for S.B.-M.

D.B. incarcerated

Deborah Bennett for L.Z.

HEARD: January 30, 2023

ENDORSEMENT

BLISHEN J.

Introduction

[1] This is a Motion by the paternal grandmother to be added as a party.

[2] On November 28, 2022, the CAS of Ottawa (the Society) filed a Protection Application requesting an order that three children – M.B. (9), S.B. (6) and Z.B. (3) be placed in the care and custody of their paternal grandmother for six months under the terms and conditions of a supervision order. The children were removed from their mother’s care on November 30, 2022, due to ongoing concerns regarding drug use, adult conflict, violence, neglect, lack of supervision and lack of parenting capacity. The immediate concern was an alleged videotaped incident of violence now acknowledged, but initially denied by the mother.

[3] Edmonton Child and Family Services was involved with the family in 2015, 2017, 2018 and 2019. The CAS of Ottawa has been involved since 2020.

[4] The father was incarcerated at the time the children were removed due to a breach of no contact conditions regarding the mother and he remains in custody.

[5] In early October 2022, prior to the removal, the paternal grandmother, Ms. Z. began assisting the mother by caring for the children every second weekend. In November she began caring for them every weekend while the mother packed and organized to move. She was also caring for the children on weekday evenings. Ms. Z. was willing to assume full time care of the children and a kin assessment was commenced.

[6] On December 1, 2022, a temporary without prejudice order was made placing the children in the paternal grandmother’s care and custody with terms and conditions, including access to the parents at the Society’s discretion.

Positions of the Parties

[7] The paternal grandmother now requests an order that she be added as a party to the proceeding pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (CYFSA), Rule 7 of the Family Law Rules O. Reg. 114/99 as am. (FLRS) and based on the jurisprudence.

[8] It is Ms. Z.’s position that the children deserve a plan of care, which will provide them with long term stability which she is ready, willing, and able to provide. She submits that her participation is essential in determining the children’s best interests, as she has been and continues to be one of the children’s caregivers, and no other party is presenting this long-term plan.

[9] The mother argues it is not in the best interests of the children to have the paternal grandmother added as a party. It is premature and would unnecessarily complicate and delay the proceedings when the intervention by the CAS is of a temporary nature and the focus is on returning the children to the mother. It also has significant potential to increase conflict between the mother and the paternal grandmother, which would negatively impact the children.

Law and Analysis

Family Law Rules

[10] The addition of a party to a proceeding is a contextual consideration that must be decided on the specific facts of each case. The court retains discretion pursuant to Rule 7 of the FLRS in determining who shall be named as a party.

[11] Rule 7 (4) of the FLRS states that in a child protection case, every parent or other person who has care and control of the child involved, except a foster parent under the CYFSA, shall be named as a party, unless the court orders otherwise.

[12] Rule 7 (5) of the FLRS states:

The court may order any person who should be a party shall be added as a party.

CYFSA

[13] Section 79(1) of the CYFSA states:

The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. In the case of a First Nations, lnuk or Metis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit, or Metis communities.

[14] Subsection 2 (2) of the CYFSA states:

Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to, (a) the person who has lawful custody of the child…

[15] Under s. 74 “parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent: … An individual who has lawful custody of the child.

… An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

[16] The paternal grandmother argues that pursuant to the CYFSA she meets the definition of a “parent” as she has lawful custody of the children. In addition, pursuant to Rule 7 (4) she has care and control of the children and therefore she should be named as a party.

[17] I do not find this argument persuasive for the following reasons:

1. The paternal grandmother has only had the children in her full-time care for two months pursuant to a temporary without prejudice Supervision Order made December 1, 2022.

2. Although she has care and custody of the children, the court has discretion as to whether to add her as a party pursuant to R. 7 (4). Ms. Z. does not have a lawful custody order. That is what she is requesting pursuant to s. 102 of the CYFSA. Strict terms and conditions of supervision were imposed by the court when placing the children in her temporary care on a without prejudice basis.

3. The children were not in her lawful custody or care and control prior to their removal from their mother’s care. She had been assisting the mother by caring for the children on weekends and after school commencing in early October 2022.

4. The CYFSA is remedial protection legislation. Before any final Supervision Order to the paternal grandmother, as the Society requests, or a final custody order to the paternal grandmother, as she proposes, can be made, the child(ren) must first be found in need of protection which in this case is an issue between the biological parents and the Society. The court can only make disposition orders under s. 101 in the children’s best interests, after finding the children in need of protection.

5. The paramount purpose of the CYFSA is to promote the best interests, protection and well being of children. Additional purposes, if they are consistent with the paramount purpose, are to provide help to parents in a way that gives support to the autonomy and integrity of the family unit and to consider the least disruptive course of action available and appropriate to help a child (S. 1 (1) and (2)).

6. This is the first time this family has been before the court. The Society is seeking a short- term six-month order placing the children with their paternal grandmother under terms and conditions of a supervision order with a view to assisting the mother as required by the legislation to have the children reintegrated back into her care. Adding the paternal grandmother as a party so she can seek a custody order when the matter has just been before the court for two months with the request for a short-term order cannot be considered the least disruptive course of action nor supportive of the autonomy and integrity of the family unit, consistent with the children’s best interests.

7. Section 79(3) specifies other persons, who, while not granted Party status, are given statutory participatory rights.

It states:

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 lawyer; and

(d) may make submissions to the court,

but shall take no further part in the hearing without leave of the court.

Although the paternal grandmother now has care and custody of the children under a temporary supervision order, she has only cared for them continuously for the last two months, since November 30, 2022. Therefore, the legislation does not yet provide that she has participatory rights pursuant to s. 79(3).

Jurisprudence

[18] In Children's Aid Society of London and Middlesex v. S.H., 2002 46218 (ON SC), [2002] 0.J. No. 4491 and Children's Aid Society of London and Middlesex v. J.P, 2000 20732 (ON SC), [2000] O.J. No. 745, the court lists the criteria to be considered before adding a party to a child protection proceeding as follows:

(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 proceedings unduly,

(c) whether the addition of the party is necessary to determine the issues, and

(d) whether the additional party is capable of putting forward a plan that is in the best interests of the child

(e) whether the person seeking to be added as a party has a legal interest in the proceeding (i.e., whether an order can be made in their favour or against them).

[19] It is not necessary for all factors to support the person seeking party status for an order to be made. In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. EL, 2020 ONCJ 677, the court notes: “the law with respect to adding parties in child protection proceedings, despite several appellate pronouncements on the subject, is still split. There are a number of decisions that go either way. However, circumstances differ in each case; so does the evidence.”

[20] The stage of the proceedings and the nature of the Society’s application are relevant to the decision regarding party status. See: AM v. Valoris pour enfants et adultes de Prescott-Russell, 2017 ONCA 601 at para 24. Children’s Aid Society of the Districts of Sudbury and Manitoulin v. EL, 2020 ONCJ 677 at paras 31, 32. Valoris for Children & Adults of Prescott-Russell v. MR, JA et al., (1 October 2020), Ontario SCJ, Crt file no 20-209 (unreported), at para 25.

[21] In this case I note the following:

1. The paternal grandmother does have a legal interest in the proceeding. That is not disputed.

2. At this very early stage of the proceedings, the addition of the paternal grandmother as a party would cause delay and unduly complicate and prolong the proceedings. She would need to obtain full disclosure; file responding materials and would have all the rights of any other party.

3. As mandated by the legislation, the focus of the Society’s intervention in this case is to continue examining the possibility of returning the child to the mother if that is in their best interests, without unnecessary delay.

4. The children are at the present time well cared for and already placed with the paternal grandmother under terms and conditions. On a temporary basis, the Society’s plan and that of the paternal grandmother to have the children remain in her care, are the same. Any relevant evidence to determine the issues at this stage of the proceeding may be provided through the Society.

5. The addition of the paternal grandmother at this early stage would create the potential for increased conflict. There is already evidence before the court of conflict between the mother and paternal grandmother. The paternal grandmother would be entitled to full disclosure of the Society’s case, including personal information regarding the mother’s mental health, substance abuse and parenting. The mother indicates she is making efforts to address these issues. To permit the paternal grandmother to have full disclosure at this point would be intrusive and not in keeping with the principle of considering least disruptive options consistent with the best interests of the children.

Conclusion

[22] Ms. Z. is clearly committed to the children and wishes to present a long-term plan for their care. Nevertheless, I do not find adding her as a party at this early stage of the proceedings to be necessary to determine the issues, the first of which is whether the children are in need of protection. It would cause inevitable delay, complicate the proceedings unnecessarily, escalate the already existing conflict and would not be in the children’s best interests. The Society is mandated to consider the least disruptive course of action available and to provide help in a way that gives support to the autonomy and integrity of the family unit that is consistent with the children’s best interests. The focus at this point is to assist the family to work towards a possible reintegration of the children back into their mother’s care, while always considering the paramount purpose of the legislation.

[23] Once she has cared for the children for a further period and depending on the mother’s circumstances and the long-term plan of the Society, circumstances may change to the extent that Ms. Z could bring another motion to be added as a party. The door is not closed to her but at this stage of the proceedings, to add her as a party is premature, unnecessary and not in the children’s best interests.

Released: February 3, 2023

COURT FILE NO.: FC-22-CP69

DATE: 2023/02/03

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 M.B. (DOB: [...], 2013),

S.B. (DOB: [...], 2016), Z.B. (DOB: [...], 2019)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

S.B.-M. (Mother)

– and –

D. B. (Father)

– and –

L. Z. (seeking party status)

Respondents

ENDORSEMENT

Blishen J.

Released: February 3, 2023