



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives
    from all or a part of a hearing; or

(c) prohibiting the publication of a
    report of the hearing or a specified part of the hearing,

where the court is of the opinion that the
    presence of the media representative or representatives or the publication of
    the report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
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 childs parent or foster parent or a member of the childs
    family.

45(9)
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.




COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. Valoris Pour Enfants et Adultes de
    Prescott-Russell, 2017 ONCA 601

DATE: 20170713

DOCKET: C63662

Hoy A.C.J.O. van Rensburg and Roberts JJ.A.

BETWEEN

A.M.

Appellant

and

Valoris Pour Enfants et
    Adultes de Prescott-Russell
, S-M.N., S.G. and C.P.

Respondent

Julie Bergeron, for the appellant

Anaïs Paré-Chouinard, for the respondents

Heard:  June 19, 2017

On appeal from the judgment of the Divisional Court
    (Swinton, Whitten and McCarthy JJ.), dated November 18, 2016, allowing an
    appeal from the order of Justice Kane of the Superior Court of Justice, dated
    July 26, 2016.

REASONS FOR DECISION

[1]

The child, A.N., was made a ward of Valoris pour
    enfants et adultes de Prescott-Russell (the Society) at the age of two months.
    In December 2015, when he was seven months old, he was placed with a
    foster-to-adopt mother (the F-A mother).   The Society filed a status review
    application in January 2016 requesting the child be made a Crown ward with no
    access rights to the parents. As detailed in their application and plan of care
    dated June 7, 2016, the Societys position was that if the child was made a
    Crown ward, it would support the F-A mother as the adoptive parent for the
    child. An uncontested trial of the Societys application for Crown wardship was
    scheduled and adjourned pending the opportunity for the biological parents to
    move to set aside their noting in default. No such motion was brought.  A
    paternal aunt and her partner expressed an intention to adopt the child early
    in 2016. In June 2016 the Society decided to support that plan instead. The paternal
    aunt and her partner filed a motion seeking to be added as parties and for a
    temporary order for care of the child. That motion was adjourned. The F-A mother
    brought a motion seeking to be added as a party to the child protection
    proceeding.

[2]

There is only one issue on this appeal:  whether
    the Divisional Court erred in overturning the motion judges decision to add
    the F-A mother as a party to the child protection proceeding.

[3]

In our view, it did.  We would allow the appeal and
    reinstate the motion judges order to grant the F-A mother party status in this
    matter.

The Motion Judges Decision

[4]

The motion judge reviewed the childs history, including the
    circumstances leading to the Societys wardship, and the evidence offered by
    the F-A mother, of the childs progress while in her care.   He noted that the
    F-A mother was coordinating and pursuing three areas of medical treatment for
    the child.  He also noted the difference between traditional foster parents and
    foster-to-adopt parents:  the clear understanding between the Society and foster-to-adopt
    parents is that children are placed with them with an ultimate goal of
    adoption.  Foster-to-adopt parents are assessed with the view that they will
    adopt the child.  It was also undisputed that the childs birth mother is in
    favour of an adoption by the F-A mother and that both women agree that there
    should be continuing access with the birth mother if the child is adopted by
    the F-A mother.

[5]

The motion judge considered conflicting jurisprudence
    as to whether foster parents should be made parties to a proceeding like this. 
    He quoted this courts comments in
L.(R.) v. Childrens Aid Society
    of the Niagara Region

(2002), 34 R.F.L. (5th) 44, at
    para. 38 that 
prior

to
    the initial hearing foster parents are meant to provide temporary care for
    children pending their return to their family or transfer to a more permanent
    placement.  They are not intended to provide a comparative basis for the
    determination of the childs best interests
from
    the outset
(emphasis
    added). He noted that in this case the initial hearing and finding that the
    child was in need of protection had already occurred.  He relied on this
    courts statement in
L.(R
.
)

at para. 50 that, depending on the circumstances, the ultimate
    determination of a permanent placement may well involve such a contest [between
    the childs family and the childs foster parents.]. When it does, it is the
    best interest of the child, not the rights of the family or the foster parents
    that is determinative of the outcome.

[6]

The motion judge began his analysis of whether the F-A
    mother should be added as a party to the child protection proceedings, by
    observing that s. 1 of the
Child and Family
    Services Act
, R.S.O. 1990, c. C.11 (CFSA)
[1]
clearly states the purpose
    of the CFSA:

The paramount purpose of this Act is to
    promote the best interests, protection and well being of children.

[7]

He noted that s. 39(1) provides who will
    automatically be parties to a child protection proceeding, but does not limit
    parties to those listed. He also noted that s. 39(3) of the CFSA provides a
    limited right of participation for non-parties to a child protection
    proceeding.  Those sections provide as follows:

39(1)
The following are parties to a
    proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The childs parent.

4. Where the
    child is an Indian or a native person, a representative chosen by the childs
    band or native community.

39(3) 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 solicitor; and

(d) may make submissions to the court,

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

[8]

The motion judge concluded, at para. 47, that [g]ranting
    such rights to non-parties, including a foster parent, is not an indication by
    the legislature that a foster parent should not be made a party.

[9]

He considered the facts of the case and, at
    para. 53, found that this [F-A mother]; not the biological parents, their
    extended family members, nor the Society, is in the best position to inform the
    Court on a Crown wardship hearing as to what the specific needs are and what is
    in the best interests of this child.

[10]

He ordered that the F-A mother be a party to the
    proceeding or, if a higher court disagreed with that determination, that the
    F-A mother have full rights to participate in this proceeding pursuant to s.
    39(3) of the CFSA.

[11]

After the motion judges decision, the Society
    amended its application to the current custodial application under s. 57.1 of
    the CFSA supporting the paternal aunts plan of care.

Divisional Court Decision

[12]

The Divisional Court noted that the motion judge
    had not mentioned rules 7(4) and 7(5) of the
Family
    Law Rules
, O. Reg. 114/99:

7(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 and Family Services Act
, shall be named as a party, unless the court orders otherwise:

1.
A case about custody of or access to a child.

2.
A child protection case.

3.
A secure treatment case (Part VI of the
Child and Family
    Services Act
).

7(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.

[13]

While it rejected the Societys argument that
    the effect of r. 7(4) is that the court cannot make a foster parent a party in
    a child protection case, it concluded that the discretion to add a party under r.
    7(5) should be exercised with caution and a foster parent should be added as a
    party only in exceptional circumstances. In the case of foster parents, the
    court should consider their existing participation rights under s. 39(3) of the
    CFSA.

[14]

The Divisional Court held that in determining
    whether a foster parent should be added as a party, the court should consider the
    following criteria:

(1) Is
    adding the party necessary for a determination of the issues in the case?

(2)  Would
    adding the party cause delays in the process?

(3) Does
    the individual have a legal interest in the child protection proceeding?

[15]

It concluded that the motion judge failed to
    consider all these criteria such that the Divisional Court was entitled to
    interfere with the motion judges exercise of discretion.

[16]

While the motion judge concluded that it was
    necessary to make the F-A mother a party, in the Divisional Courts view, he
    overlooked the existing presumptive rights of participation of the F-A mother
    under the CFSA and the fact that she could request permission from the court to
    have her participatory rights expanded.  Further, in its view, the Society had
    relevant information in its files and could call the F-A mother as a witness if
    necessary.

[17]

It reasoned that adding the F-A mother as a
    party would add delay since she opposed the Societys current plan.

[18]

It also held that the F-A mother did not have a
    legal interest in the proceeding.

[19]

Since the alternative remedy of expanded
    participatory rights proposed by the motion judge in paragraph 63(b) of his
    reasons was not reflected in the signed Order under Appeal, the Divisional
    Court did not address it.

Analysis

[20]

In our view, both r. 7(4) and s. 39(3) of the
    CFSA preserve the courts discretion to add a foster parent as a party to a
    child protection proceeding.   We agree that the power to add such a person as a
    party should not be exercised lightly.  However, the Divisional Court
    circumscribed the exercise of that discretion too narrowly. While delay and legal
    interest are relevant, they are not, by themselves, determinative.  The
    overarching consideration is the childs best interests.  The motion judge
    determined that on the facts of this case, the F-A mothers participation as a
    party was both necessary and in the childs best interests.   Further, we do
    not agree with the Divisional Courts assessment of the delay and legal
    interest factors.

[21]

Absent a palpable and overriding error, an error
    in law, or an unreasonable exercise of discretion, the motion judges decision
    should not have been interfered with.  In our view, no such error was present
    here.

[22]

The decision often cited for establishing
    criteria for adding parties in child protection proceedings is
Childrens
    Aid Society of London and Middlesex v. H.(S.)
,

[
2002]
    O.J. No. 4491 (QL).  That case suggests, at para. 22, that the relevant
    questions are:

(i) whether the addition of the party is in the best
    interest    of the child;

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

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

(iv) whether the proposed party is a person capable of
    putting forward a plan that is in the childs best interests.

[23]

Whether the person has a legal interest in the
    proceeding  in the sense that an order can be made in favour of or against
    such person  has also emerged as a relevant factor:
Childrens Aid
    Society of Algoma v. V.C.
, 2011 ONCJ 83, at paras. 11 and 12.

[24]

It is not necessary for all factors to favour
    the person seeking party status for the court to add him or her:
V.C.
, at para. 19.

[25]

We echo Czutrin J.s comments at paras. 20 and
    21 of
Catholic Childrens Aid Society of Toronto v. S.(R.D.)
(2008),
    55 R.F.L. (6th) 132, and endorse his list of additional relevant
    considerations.

[26]

In
S.(R.D.)
, a foster parent appealed a
    motion judges refusal to grant her party status or expanded participatory
    rights.  On appeal, Czutrin J. granted her expanded participatory rights,
    specifically, the right to pretrial disclosure as a party and to call and
    cross-examine witnesses. He stated at paras. 20 and 21:

For very good and appropriate reasons, foster
    parents rights are limited prior to an order making the child a Crown ward. At
    the same time, even if the foster mother were not added as a party, s. 39(3) of
    the CFSA leaves open (and in fact contemplates) that the court may grant foster
    parents rights to participate more fully. There is certainly no absolute
    prohibition against doing so.  The motions judge overemphasized the option of
    placing the child with his grandparents in the context [of] considering the
    foster parents rights of participation at this stage.  The motions judge should
    have also considered the impact on the child of the time that has passed in
    this case without resolution and the people who could best bring to light his
    best interests.  The Act should be read and balanced as a whole.

I find that the Court must, on a case-by-case
    and contextual basis, consider whether to grant leave to allow foster parents
    greater rights of participation,
up to and
    including party status
. These considerations might
    include:

1. The age of the child and the time line
    considerations of the CFSA;

2. Whether there has been a finding of a
    need of protection at the time the request for participation is made;

3. Whether the foster parents will be
    called to testify and whether their evidence will be challenged;

4. Whether the persons or parents who had
    charge of the child at the time of commencement of the proceedings are
    presenting a plan;

5. The time of continuing placement of the
    child;

6. Whether there has been any contact with
    the proposed caregivers;

7. Whether the application has been
    amended; and

8. Such other considerations that suggest
    the foster parents involvement would clarify the best interests of the child.
    [Emphasis added.]

[27]

In this case, the motion judge began with the
    paramount purpose of the CFSA to promote the best interest and well-being of
    children: he correctly identified and applied the most important consideration.

[28]

He referred, at paras. 52 and 53, to the childs
    arrival at the F-A mothers home in a state of emotional disarray, and his
    emotional progress in recovery in the following months. He concluded that, as a
    result, the F-A mother was in the best position to inform the Court as to the
    specific needs and best interest of the child. In his view, and in the
    circumstances of this case, where the Society had changed course after
    approving the F-A mother to become an adoptive parent, this warranted her
    involvement.  In
S.(R.D.)
Czutrin J. found a need for expanded
    participatory rights despite the fact the child was represented by OCL counsel
    who could neutrally collect and present best interests information to the court. 
    Here, unlike in
S.(R.D.)
, the OCL is not involved.

[29]

The motion judges conclusion that it was
    necessary to make the F-A mother a party was reasonable.

[30]

While delay was not explicitly mentioned in the
    motion judges reasons, we disagree with the Divisional Court that there is
    reason to expect the F-A mothers involvement would add considerable delay. As
    in
S.(R.D.)
, here too the F-A mother has legal counsel and has not
    asked to adjourn or delay the proceedings.

[31]

The Divisional Courts conclusion that the F-A
    mother has no legal interest in the proceedings, in our view takes too narrow a
    view. In the circumstances of this case, while it is correct that no final
    order could be made against or in favour of the F-A mother at this stage in the
    proceedings, depending on the outcome of the proceedings, any opportunity for
    her to adopt the child would be foreclosed. In this sense her legal interests
    are affected.   The decision here however does not turn on the question of the
    existence, nature or extent of the F-A mothers legal interest.  As correctly
    pointed out by the motion judge, the protection and pursuit of the childs best
    interests, rather than the rights of the F-A mother, are the central issue.

[32]

As for the additional relevant considerations
    articulated in
S.(R.D.)
, in this case the child has just turned two. 
    He has spent most of his life, since the age of seven months, with the F-A
    mother.  Since the Divisional Courts decision in November 2016, the child has
    remained in the care of the F-A mother, spending two days each week with his
    paternal aunt.

[33]

The child was found in need of protection on
    October 22, 2015 at which time he was placed with the F-A mother. 
    Significantly, at the time the F-A mother brought her motion, this was not a
    case where either parent could regain custody.

[34]

If granted no further participatory rights, the
    F-A mother, who is also the person with charge of the child at the commencement
    of the proceeding, and who wishes to ultimately present her own plan, may be
    denied the opportunity to testify.

[35]

The motion judge did not explicitly advert to
    all these factors in his reasons. However, he conducted a fact-specific and
    contextual analysis guided by the paramount consideration of the childs best
    interests.  In light of all the factors enumerated above, it was in our view
    open to the motion judge to find that the F-A mothers involvement in the child
    protection proceedings as a party would clarify the best interests of the
    child.

[36]

Given this, the Divisional Court in our view
    erred in interfering in the motion judges reasonable exercise of discretion.

Disposition

[37]

The appeal is allowed.

[38]

We reinstate the motion judges order granting
    the F-A mother party status in the proceedings about the child.

Alexandra
    Hoy A.C.J.O.

K.M.
    van Rensburg J.A.

L.B.
    Roberts J.A.





[1]

The motion judge incorrectly referred to the
Childrens Law
    Reform Act
, R.S.O. 1990, c. C.12. It is clear from the references to the
    sections that he meant to refer to the CFSA.


