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.: 1028/24
DATE: January 8, 2025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hamilton Child & Family Supports, Applicant
AND: C.R., J.T., A.D., Defendant(s)
BEFORE: The Honourable Mr. Justice Alex Pazaratz
COUNSEL:

• John Bland, Counsel for the Applicant
• Amy Katz, Counsel for the Defendant C.R.
• Self-Represented Defendant J.T.
• Self-Represented Defendant A.D.
  HEARD: December 18, 2024

ENDORSEMENT

1. The Motion

This is the maternal grandmother DR’s motion dated November 26, 2024 for the following:

a. To be added as a party.
b. If added, to receive copies of all pleadings and be allowed a reasonable period of time to file an Answer and Plan of Care.
c. Reasonable specified access to the children, including unsupervised and overnight access.
d. Access over the Christmas period including unsupervised and overnight access.

2. The Motion Materials

a. DR filed a November 26, 2024 affidavit in support of her motion.
b. Hamilton Child & Family Supports (“the Agency”) filed a December 6, 2024 affidavit of child protection worker Maneeja Noori, explaining the Agency’s opposition to DR being added as a party, or having expanded access.
c. DR filed a December 12, 2024 reply affidavit.
d. No other parties filed materials on this motion.

3. The Two Female Children

a. JR is two years old. MR is one.
b. On August 14, 2024 the children were brought to a place of safety when Brantford police found the mother and a female friend passed out, one in the bathroom, the other in a giant pile of clothes, while the two children and another child were running around unattended with drug paraphernalia readily available.
c. From August 14 to 19, 2024 the children were in the care of the mother’s female friend AD who was designated as a Place of Safety.
d. They were then placed in foster care August 19, 2024, while AD’s situation was further investigated.
e. A kinship assessment of AD resulted in her being approved to care for the children.
f. On October 24, 2024 both children were again placed in AD’s care on an extended visit because the foster placement’s situation changed, and they didn’t have the resources to care for the children.
g. Both children have remained in AD’s care since then and the Agency says they are doing well.
h. On December 13, 2024 the Agency obtained an order at an unopposed motion adding AD as a party, with a temporary order placing the children in AD’s care under terms of supervision, with access to the children being in the Agency’s discretion and supervised in its discretion. (When Justice Brown made that order, she adjourned this current motion by DR to the placeholder list on December 18, 2024, which is when it was heard.)

4. The Mother CR

a. The mother CR is 27. She has 2 previous children. The oldest was placed in Extended Society Care with no access in 2017. The second child is seven years old and resides with her paternal grandparents. The mother has sporadic access to that child.
b. The mother is represented by counsel and supports DR’s requests to be added as a party, and also for access to the children. She did not file any materials on this motion.
c. CR has had extensive criminal involvement and is currently incarcerated at Vanier Centre for Women. A release document says she is not to communicate with the children directly or indirectly except with a family court order or pursuant to CAS approval.

5. JR’s Father JT

a. JT, 23, has been named as JR’s father.
b. JT represented himself at the motion and stated he agreed with the Agency that DR’s claims should be dismissed.

6. MR’s Father

a. MR’s father is unknown.

7. The Mother and AD

The mother and her friend AD both report that AD is named as a “parent” on MR’s birth certificate.

8. Mother’s Friend AD

a. AD has been significantly and beneficially involved in the children’s lives.
b. At the hearing of the motion, AD took no position with respect to DR’s requests.

9. DR’s Position with Respect to Being Added as a Party

a. She has a good relationship with her daughter CR and with CR’s children.
b. JR and MR lived primarily in her home since birth. There was a brief period when the mother and the children went to a shelter for protection from the father and his mother. They also briefly stayed with AD.
c. The mother CR has worked voluntarily with the Society since each child was born. The safety plan has always been that if the mother had a relapse or any issues, the children would remain in DR’s care.
d. But when the mother was arrested in August 2024 the Society refused to work with DR or place the children in her care.
e. The children have been placed in several homes while in care and they have not been able to see the mother or the maternal grandmother regularly.
f. The children have not been properly cared for while in care. For example, the children have sensitive skin. The Agency was notified of this but the foster parents did not use the required products, and the children have suffered diaper rashes.
g. On August 14, 2024 the mother was visiting friends. The friends got into a domestic incident. Police attended and discovered there was an outstanding warrant for the mother, so she was arrested and charged. Ultimately the mother decided to go back into incarceration where she could get services and programs to assist her in getting the children back.
h. In June 2024 DR attempted to commence an application in Hamilton family court to secure care of the children, but problems with the paperwork meant the application wasn’t issued until August 2024.
i. JR’s father JT and the paternal grandmother KT have made many false allegations about her. Both of them have serious criminal records and go by different names. They have both been abusive and threatening to the mother, DR and AD.
j. The mother has filed an Answer and Plan of Care proposing that the children be placed with DR while she deals with the criminal charges, completes services and programs, and is in a position to have the children returned to her care.
k. The mother has indigenous heritage which is not reflected in the Agency’s documents.
l. DR has always been a consistent and reliable support for the mother and the children.
m. She has always been truthful and cooperative with the Agency.
n. She denies the Agency’s allegation that she attempted to cover-up or interfere with the police and Agency response to the August 13/14, 2024 incident which led to the children being taken to a place of safety.
o. The Agency has never properly assessed her as an alternate caregiver, and she needs to be added as a party in order to ensure that the Agency gives proper consideration to her proposal.

10. The Agency’s Position with Respect to DR Being Added as a Party

a. The Agency is opposed to the request.
b. DR is neither a parent nor a caregiver.
c. She is not entitled to party status by any test.
d. DR has mis-stated and greatly exaggerated her past involvement with the children.
e. She has falsely stated the children resided primarily in her home from birth. In fact the children lived with their mother in shelters, the homes of friends, and only for brief periods with DR. She had some contact with the children, but did not care for them with any consistency.
f. Although DR was, at times, involved with the children, she was not a consistent and reliable support that provided safety.
g. DR was supposed to be part of the mother’s “safety plan” but did not fulfill this role.
h. When DR learned of the August 13/14, 2024 incident in which Brantford police found the mother and another woman passed out while the children played unattended in an environment of drug paraphernalia, DR participated in an attempt to conceal the fact that the children had been present, and she attempted to remove the children and prevent the Agency from becoming involved.
i. The Agency has received many reports about concerns relating to DR. The materials set out various examples.
j. DR has been uncooperative and resistant in dealing with the Agency.
k. The Agency is well-acquainted with DR and already has overwhelming evidence to support its conclusion that DR cannot be approved as a kinship care provider. Adding DR as a party will not generate additional information. The Agency is already quite familiar with DR and its concerns about DR are clear and well-founded.

11. DR’s Position with Respect to Access

a. DR has a close relationship with the children and historically she has been actively involved in their lives.
b. It is in the best interests of the children that they have regular access to DR including overnights.
c. There is no basis for DR’s access to the children being supervised.

12. The Agency’s Position with Respect to DR’s Access

a. There should be no changes to DR’s access at this time. Certainly unsupervised overnight access in DR’s home would be inappropriate for the children.
b. The Agency has significant concerns about DR’s lack of judgment and candor in the past.
c. She has overstated her role and relationship with the children.
d. She has been uncooperative and she has attempted to conceal or interfere with Agency investigation of dangerous or inappropriate situations the children have experienced.
e. DR currently has four hours of access per week in AD’s home. The Agency needs to see these visits go well, without issue for some time, before any further changes are considered.

13. Analysis: DR’s Motion to Be Added as a Party

I will first deal with DR’s motion to be added as a party.

14. Party Status in Child Protection Proceedings

Party status in child protection proceedings can arise in one of two ways:

a. Pursuant to Rule 7(5) of the Family Law Rules; or
b. Pursuant to the Child, Youth and Family Services Act (“CYFSA”) which defines party status.

15. Statutory and Discretionary Party Status

The Family Law Rules provide a discretionary approach. The provisions in the CYFSA are not discretionary. If a person is a “parent”, as defined by a statute, the court has no jurisdiction to find otherwise. CAS of London & Middlesex v. T.E., 2023 ONCA 149 (ON CA); CCAS of Toronto v. D.L., 2014 ONCJ 587 (OCJ).

16. Case-by-Case Determination

The decision to add a person as a party to a proceeding must be determined on a case-by-case basis given the very specific facts of each case and the impact of this decision on the overall proceedings. CAS Region of Peel v. J.D.S., 2017 ONCJ 715 (OCJ).

17. Onus on Applicant

Any person seeking to be added as a party has the onus of proving that either they qualify as a statutory party pursuant to s.79(1) or they should be added as a party pursuant to Rule 7(5).

18. Section 79(1) of the CYFSA

Section 79(1) of the CYFSA sets out the criteria for party status:

79 (1) 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, Inuk or Métis 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 Métis communities.

19. DR’s Submission

DR submits she qualifies as a “parent”. The Agency strenuously disputes this.

20. Definition of “Parent”

Section 74(1) defines a “parent”:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.
2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7(2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.
3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.
5. An individual who has lawful custody of the child.
6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.
7. 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.
8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1(1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force; (“parent”)

21. DR’s Claimed Basis

DR claims she qualifies under item 6: An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family...

22. Court’s Finding on Parent Status

The Agency disputes this. I agree with the Agency.

a. DR makes broad, imprecise statements as to the children’s placement since birth.
b. In contrast, the Agency’s materials set out in considerable detail the exact chronology of events and placements which confirms that DR would not qualify under this definition of “parent”.
c. The Agency correctly identifies that there are inconsistencies in DR’s narrative between her November 26, 2024 affidavit and her December 12, 2024 affidavit. The first affidavit sets out a narrative that the children “have lived in my home primarily since birth.” The second affidavit blurs the narrative with more general statements like “I have been a primary caregiver...with my daughter, their mother...” and “I cared for JR whenever my daughter was not available....”
d. Overall, the Agency’s narrative is more clear and precise, and I find that the mother’s materials fail to establish that she qualifies as a “parent”. DR may have been involved in each child’s life at various times. But that’s not what the statute contemplates.

23. Rule 7 of the Family Law Rules

Alternatively, the mother relies on Rule 7 of the Family Law Rules which states:

Who are parties — case
7. (1) A person who makes a claim in a case or against whom a claim is made in a case is a party to the case. O. Reg. 114/99, r. 7(1).

Who are parties — motion
(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to decision-making responsibility, parenting time, contact, child protection, adoption or child support. O. Reg. 114/99, r. 7(2); O. Reg. 42/21, s. 3(1).

Persons who must be named as parties
(3) A person starting a case shall name,
(a) as an applicant, every person who makes a claim;
(b) as a respondent,
(i) every person against whom a claim is made, and
(ii) every other person who should be a party to enable the court to decide all the issues in the case. O. Reg. 114/99, r. 7(3).

Parties in cases involving children
(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about decision-making responsibility, parenting time or contact with respect to a child.
2. A child protection case.
3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017). O. Reg. 114/99, r. 7(4); O. Reg. 298/18, s. 7(1, 2); O. Reg. 535/18, s. 1; O. Reg. 42/21, s. 3(2).

Motion to change order, s. 102 of the CYFSA
(4.1) In a motion to change an order made under section 102 of the Child, Youth and Family Services Act, 2017, the children’s aid society that was a party to the case in which the order was made is not a party to the motion to change the order, unless the court orders otherwise. O. Reg. 298/18, s. 7(3).

Party added by court order
(5) The 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. O. Reg. 114/99, r. 7(5).

Restriction on adding child as a party
(5.1) A child who is the subject of a case about decision-making responsibility, parenting time, contact, child protection, adoption or child support but is not a party to the case may not be added as a party unless the court orders otherwise. O. Reg. 250/19, s. 3; O. Reg. 42/21, s. 3(3).

24. Court’s Finding on Rule 7(4)

Just as I found DR is not a “parent”, I also find that she does not qualify under Rule 7(4).

25. Criteria for Discretionary Addition as a Party

The Rules do not set out the criteria to be met for an order to be made pursuant to Rule 7(5), which gives the court broader discretion. Those criteria are based on the case law. CAS of Ottawa v. H.M. & J.M., 2021 ONSC 7191 (SCJ)

26. Legal Principles for Adding a Party

The legal principles for the court to consider before adding a party to a child protection proceeding have been thoroughly reviewed in CAS of London & Middlesex v. S.H., S.W. and D.R.; CAS of London & Middlesex v. J.P.; and Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765 (SCJ). They are:

1. Whether the addition of the party is in the best interests of the child,
2. Whether the addition of the party will delay or prolong proceedings unduly,
3. Whether the addition of the party is necessary to determine the issues, and
4. Whether the additional party is capable of putting forward a plan that is in the best interests of the child.
5. 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).

27. Not a Cumulative Test

It is not necessary to satisfy all the criteria before the court will add that person as a party. CAS of Algoma v. C.V., 2011 ONCJ 83 (OCJ); CAS of Toronto v. E. (D.), 2016 ONCJ 390 (OCJ). Nor do the factors constitute a cumulative test. Each factor is to be considered but not all must favour or disfavour granting added party status. CAS of Haldimand & Norfolk v. G.B., 2021 ONSC 4244 (Div Ct).

28. Overarching Consideration: Best Interests

While delay and legal interest are relevant, they are not, by themselves, determinative. The overarching consideration is the child’s best interests. A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (ON CA).

29. No Delay or Prolongation

I agree with DR that adding her as a party would not appear, at this time, to delay or prolong the proceedings. As stated, AD was very recently added as a party.

30. Not Necessary to Determination of Issues

I am not, however, satisfied that adding DR as a party is necessary to the determination of the issues:

a. DR’s materials suggest her proposed involvement is an adjunct to the mother’s plan.
b. DR and the mother are completely aligned.
c. They both propose that the children reside with the mother. But for whatever periods the mother is unavailable by reason of incarceration, DR is proposing that the children be with her.
d. DR is proposing a shared arrangement, and the mother appears to be proposing the same thing.
e. DR submits she needs to be a party to ensure that what she has to offer the children can be properly assessed by the Agency. But the Agency’s evidence strongly suggests that DR’s situation and relationship with the children has been thoroughly considered, and the Agency has provided specific examples of negative or concerning factors which have led to negative conclusions about DR.

31. Mirrored Positions

If a proposed party’s position mirrors an existing party’s position, adding a party to present the same or similar legal arguments would not contribute to the best interests of the child. J.S.-R. v. CAS of Ottawa, 2020 ONSC 6642 (Div Ct)

32. Existing Party Can Present Plan

The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party. Catholic Children's Aid Society of Toronto v. H. (D.), 2009 ONCJ 2 (OCJ).

33. Opportunity to Testify

If a person’s lack of party status means that their plan of care will not be put before the court and they may be denied the opportunity to testify, then it may be necessary to add the person as a party. A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (ON CA). But in this case, the mother has counsel and is participating. DR will be able to testify as a witness in the mother’s case.

34. Low Threshold for Plan

The test with respect to “capable of putting forward a plan” has a relatively low threshold. On a motion to be added as a party, the issue is not whether the applicant’s proposed plan is in the best interests of the child. The issue is whether the applicant is capable of putting forward a plan of care that is in the best interests of the child. CAS of Ottawa v. H.M. & J.M., 2021 ONSC 7191 (SCJ).

35. Bolstering Another Party’s Case

But to a large extent DR’s objective is to bolster the mother’s case, and to provide reassurance that the mother’s proposal includes a back-up plan. There is a substantial difference between a third party advocating a party’s position as opposed to that party making his or her own case. Simcoe Muskoka Child, Youth and Family Services v. M. (B.), 2017 ONSC 535 (SCJ); CAS of Brant v. N.M.P., 2016 ONCJ 266 (OCJ).

36. Witness vs. Party Status

That someone may have relevant evidence in a case does not elevate them from a witness to party status. Noik v. Noik (2001) R.F.L. (5th) 370 (SCJ); CAS of Toronto v. C.K., 2013 ONCJ 342 (OCJ).

37. Legal Interest

As for the “legal interest” component, 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. CAS of London & Middlesex v. S.H., S.W. and D.R.; Highland Shores CAS v. T.S., 2019 ONSC 5765 (SCJ).

38. DR’s Legal Interest

DR submits she has a legal interest because she is seeking access, and she is seeking an order which she could enforce. The Court of Appeal cautioned against too narrow an interpretation of “legal interest” in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601. I find that DR has a legal interest.

39. Discretion Remains

But the existence of a legal interest does not automatically eliminate the court’s discretion to determine whether or not to add a party to protection proceedings. CAS Region of Peel v. J.D.S., 2017 ONCJ 715 (OCJ).

40. Paramount Purpose: Best Interests

The decision to add a party to proceedings must be examined within the paramount purpose of the Act as set out in section 1, namely "... to promote the best interests, protection and well-being of children." CAS Region of Peel v. J.D.S., 2017 ONCJ 715 (OCJ).

41. Best Interests of the Child

The factors to be considered in determining the best interests of a child are contained in section 74(3) of the Act:

Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74(3).

42. Conclusion on Party Status

I find that DR has failed to satisfy the onus of establishing that she should be added as a party either on a statutory basis, or pursuant to the discretion afforded by the Rules. She has not established that her participation as a party is necessary or in the best interests of the children.

43. DR’s Request for Expanded Access

a. I have reviewed the evidence of the children’s relationships with all of the adults in their lives.
b. I note that while MR has been described as doing well, JR has experienced many serious behavioural and emotional issues.
c. The Society materials include significant information from a Dr. Leucht, a pediatrician who stated that JR’s ongoing screaming and physical acting-out is a trauma response which will likely dissipate with a safe and secure environment. Dr. Leucht said the number and length of visits can be retraumatizing for children making it difficult for them to feel secure. He recommended that access be limited, and suggested that once there is a decrease in trauma response from the children, then visits may be extended.
d. Dr. Leucht said the children need constant reassurance, and to have their needs met in the same environment to feel secure.
e. Dr. Leucht said he recognized the importance of family connections, however, he felt that stability and the needs of the children were more important at this time.
f. Dr. Leucht said keeping the children together was in their best interest, which is also a priority for AD.
g. The good news is that the children’s current placement with AD appears to be addressing all of the concerns and objectives identified by Dr. Leucht. AD appears to be sensitive to the children’s individual needs, and she is respectful of their various extended family relationships. The children are doing well and are happy in her care.
h. I am satisfied that the Agency has addressed and refined access by various adults in the children’s lives, to prioritize their physical and emotional safety. As part of this ongoing focus on the children’s safety and stability, the Agency recently cut back the paternal grandmother’s time as a result of a serious incident arising. I am satisfied that the Agency is being diligent in actively monitoring and adjusting access arrangements.
i. DR is currently having four hours of time per week in AD’s home. This is a friendly environment. AD and DR and the mother have a long-standing friendly relationship.
j. I am not satisfied that expanding access at this time is in the best interests of the children. They require a very stable and minimally disrupted routine. And the concerns about DR which cause me to conclude that it is not in the children’s best interests that she be added as a party – those same concerns about her historic judgment and inability to prioritize the children’s well-being, also mitigate against any significant expansion of access (and certainly no overnight access) for DR at this time.

44. Disposition

The motion by DR is dismissed in its entirety.

Justice Alex Pazaratz
Date: January 8, 2025