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Child Protection - The Court's Decision on the Addition of a Foster Parent

March 1, 2022

Ontario

,

Canada

Issue

In what circumstances may foster parents be added as parties to child protection proceedings?

Conclusion

The Child, Youth and Family Services Act, 2017 (the CYFSA) governs child protection in Ontario. Section 79(1) CYFSA states who are the parties in a CYFSA case. Section 79(3) specifies other persons, who, while not granted party status, are given statutory participatory rights. (Child, Youth and Family Services Act, 2017)

The addition of a party to a proceeding, including a proceeding under the CYFSA, is governed by r. 7(5) of the Family Law Rules, O. Reg. 114/99 (“FLR”). It provides that, “[t]he court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.” The FLR do not set out the criteria to be met for an order to be made under r. 7(5). Those criteria are based on the case law. (Children’s Aid Society of Ottawa v. H.M. and J.M.)

In determining whether it is appropriate to add a foster parent to a child protection proceeding the court must consider the following five factors:

(1) whether the proposed party is a person capable of putting forward a plan that is in the children’s best interests;

(2) whether the proposed party has a legal interest in the proceedings;

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

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

(5) whether the addition of the party is in the best interests of the child. (Highland Shores Children’s Aid Society v. T.S.)

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. The most important and overarching factor is the best interests of the children. There is a substantial difference in a third party advocating a party’s position as opposed to that party making his or her own case. (Highland Shores Children’s Aid Society v. T.S.)

It is not necessary that all factors favour the person seeking party status for the court to grant the order. The only mandatory factor is whether the proposed party has a legal interest in the case. A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell (A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell)

The power to add a foster parent as a party should not be exercised lightly and the overarching consideration is the child’s best interests. (A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell)

Foster parents’ rights are limited prior to an order making the child a Crown ward. 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 parent’s involvement would clarify the best interests of the child. (A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell)

Law

Section 2(1) of the Child, Youth and Family Services Act, 2017 states that “foster care” means the provision of residential care to a child, by and in the home of a person who:

(a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

(b) is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”).

Section 79(1) CYFSA states who are the parties in a CYFSA case:

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.

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

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.

In Highland Shores Children’s Aid Society v. T.S. the Children’s Lawyer moved under Rule 7 of the Family Law Rules O. Reg. 439/07, s. 1. and section 79(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched,1. (“CYFSA”) to add W.M. as a party to the proceedings. W.M. wished to have J.S. join her older sister S.S. in her home. She wished to continue to provide foster care to both siblings and hopefully to adopt them. To that end she wished to submit a Plan of Care and participate fully in these proceedings. Tellier J. held that considering the factors of the case W.M. should be added as a party:

[16] It is well established law that in determining whether to add a party to a child protection proceeding the court must consider the following five factors:

(1) whether the proposed party is a person capable of putting forward a plan that is in the children’s best interests;

(2) whether the proposed party has a legal interest in the proceedings;

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

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

(5) whether the addition of the party is in the best interests of the child.

See A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russel, 2017 ONCA 601(CanLII), Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83 (CanLII) and Children’s Aid Society of London and Middlesex v. H.(S.), [2002] O.C. No 4491 (S.C.J.). (“H.(S.)”).

[17] It is not necessary that all factors favour the person seeking party status for the court to grant the order. See A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russel, supra, at paragraph 24, citing V.C., supra at paragraph 19. According to H.(S.) the only mandatory factor is whether the proposed party has a legal interest in the case.

[19] W. M. has a legal interest in the proceeding as she is ultimately seeking an order placing both girls in her care on a permanent basis. In H.(S.), the court at paragraph 25 held that 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.

[20] I find that her full participation is necessary so that she has input into and is bound by any terms and conditions which may form part of a final disposition.

[21] I share the Society’s concerns about delay and expanding the litigation. Both of these teens deserve some permanency. With proper case management, including perhaps a focused hearing on the merits, all parties and counsel can work cooperatively, as they are obliged to do, pursuant to Rule 2 of the Family Law Rules, to prevent undue delay and craft a fair and efficient process to conclude this matter.

[22] The most important and over-arching factor is the best interests of the children. I agree with the submissions made by the OCL that her role as their advocate should not be potentially compromised by submitting a Plan of Care on behalf of a caregiver. It is in the children’s best interests that the OCL continue to take steps to ascertain their views and preferences, as the case unfolds, and to advocate for any terms and conditions it believes serves their best interests, having regard to all of the evidence and their instructions. Granting W.M. party status and requiring her to submit her Plan of Care, through her own counsel, ensures the OCL is not placed in any conflict, real or perceived, in her role as advocate for her clients.

[23] In Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266, the court noted there is a substantial difference in a third party advocating a party’s position as opposed to that party making his or her own case, concluding it is no answer to the motion that someone else, - here the OCL- can do the job.

[24] After having considered all the facts in relation to the five factors, especially both children’s best interests, I conclude that W.M. ought to be added as a party.

In Children’s Aid Society of Ottawa v. H.M. and J.M., 2021 ONSC 719 an application was filed for a status review of an order for the placement of four children in Extended Society Care. The respondents to the application are the parents of six children. The four youngest children (“the Four Children”) were the subject of this application. The two oldest children were, independent of this proceeding, each the subject of an order for Extended Society Care. None of the children are First Nations, Inuk, or Métis. The Four Children were previously in Society Care from August 2019 to March 2021. The non-party, D.L., brought the motion for an order adding her as a party to the application. D.L. had put forth a plan of care for the Four Children. The Office of the Children’s Lawyer (“OCL”) represented the Four Children. The OCL consented to the relief sought. The Children’s Aid Society of Ottawa (“the Society”) did not consent to the relief sought; it did not, however, oppose the motion. Corthon J held that D.L. should be added as a party to the litigation:

[15] D.L. seeks to be added as a party to a proceeding under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA”). The paramount purpose of the CYFSA “is to promote the best interests, protection and well-being of children”: s. 1(1). Section 79 of the CYFSA sets out who the required parties are for proceedings pursuant to that statute. D.L. does not fall within any of the enumerated categories of individuals who are required to be parties to a proceeding under that Act.

[16] The addition of a party to a proceeding, including a proceeding under the CYFSA, is governed by r. 7(5) of the Family Law Rules, O. Reg. 114/99(“FLR”). It provides that, “[t]he court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.”

[17] The FLR do not set out the criteria to be met for an order to be made under r. 7(5). Those criteria are based on the case law. The questions to be posed on a motion of this kind are set out at para. 16 of the decision of Tellier J. in Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765:

(1) whether the proposed party is a person capable of putting forward a plan that is in the children’s best interests;

(2) whether the proposed party has a legal interest in the proceedings;

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

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

(5) whether the addition of the party is in the best interests of the [children].

[18] The only mandatory factor is that the proposed party has a legal interest in the case; it is not otherwise necessary that all factors favour the addition of the proposed party: Highland Shores CAS, at para. 17.

In Children’s Aid Society of the Regional Municipality of Waterloo v. C.T-C., 2018 ONCJ 764 a motion was commenced by counsel for the Foster Parent, T.N. seeking an order expanding her rights of participation in proceedings as set out in section 39(3) of the Child & Family Services Act (the “Act”) to include the following:

(a) disclosure of the Society file including the Kin Assessment of M.T.;

(b) the ability to attend trial, cross-examine witnesses, present evidence and make submissions; and

(c) the ability to participate in any argument of the admissibility of evidence.

Oldham J. held that:

[11] The parties referred me to three decisions on this issue. The Catholic Children’s Aid Society of Toronto v. R.D.S.de L., 2008 CanLII 8607 (ONSC) (“R.D.”); A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 CanLII (“A.M.”); and Children’s Aid Society of London and Middlesex v. L.W. 2014 ONSC 6588 CanLII (“L.W.”).

[12] While it was Ms Towlson’s submission that there is no distinction in the case law between early stages of proceedings and proceedings where findings in need of protection have been made, I disagree. Justice Henderson in L.W. reviews a number of decisions were the courts have highlighted the role of the foster parent as being an agent of the Society who should not be advancing a comparative analysis of plans as between themselves and the family. The following comments are made in respect of that position which suggest that at a different stage in the proceedings the role of the foster parent may be different.

a. Justice Marshman in Children’s Aid Society of London and Middlesex v. J.P. 2000 CanLII 20732 (ONSC) at para 6 stated:

“It is safe to assume that the mother is correct and the foster parents’ real interest in this proceeding is as a persons who wish to have the child placed with them on a permanent basis, presumably with a view to adoption. In my opinion, foster parents in that position have no entitlement to become parties to the proceedings. No order can be made in their favour or against them at this stage of the proceeding. J. is not a Crown ward. At this stage the foster parents are merely agents of the Society, which continues to have the sole discretion as to where the child is placed. Foster parents have limited rights under s. 61 of the Child and Family Service Act in circumstances where the child is a Crown ward and has lived with the foster parent continuously for two years. In my opinion it would be dangerous to give foster parents party status in circumstances where a child is not yet a Crown ward.” [Emphasis added].

b. Justice Nasmith in Children’s Aid Society of Metropolitan Toronto v. D.S. and F.S. (1991), 1991 CanLII 4537 (ONCJ) at para 10 states:

[13] “It is anathema to the role of the foster parents at this preliminary stage of protection intervention to be setting them up as permanent caretakers and to have them staking their own custodial claims on the child. They should be preparing the child for a return to the family. Until it has been determined that there are grounds for removing the child from the family, and that there is no one in the family who is acceptable as a substitute caretaker, the foster parents cannot be putting forward their own resources as being ‘better’ than the family’s or calling for a comparative analysis of plans as between themselves and the family. Before removal from the family has been justified, foster parents cannot have status to compete for the child and to argue ‘attachment’ or ‘better resources’

There is a tacit agreement between the protection agency and foster parents that no claims for custody be made by them until the way has been legally cleared for them.” [Emphasis added].

c. JJA. Weiler and Charron in R.L. v. Children’s Aid Society of Niagara Region, 202 CanLII 41858 (ONCA) wrote at para 38:

“Finally, 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 child’s best interests from the outset. A best interests comparison between the foster home and the original family at this stage would run contrary to the entire scheme of state intervention in cases where there is reason to believe that a child is in need of protection …” [Emphasis added].

[14] In L.W., Justice Henderson was dealing with a request to provide the foster parents with disclosure to enable counsel to provide informed advice. The foster parent in L.W. was not seeking party status. The foster parent was not even seeking to participate in the hearing. After reviewing the above decisions, in dismissing the foster parent’s request, Justice Henderson stated at para 15:

“Even though these cases deal with requests to add foster parents as parties, the theme is clearly to restrict their participation in the proceedings, particularly where there has yet to be a finding of a child in need of protection.” [Emphasis added].

[15] In the case before me, we are looking at the Foster Parent’s right to participate in a hearing dealing only with the right of the Grandmother to exercise access to the child. The Foster Parent has already been identified as the adoptive family and the way has been cleared by my order making L.T. a crown ward. While the Society is aligned in respect of its request that there be an order for no access, the positions are not completely aligned in that the Foster Parent can be more specific in terms of the best interests of the child and how or why access may impair adoption in her home.

[16] The reference to “the stage of proceedings” in the above cited cases does not mean that foster parents are to be added as parties automatically once there has been a finding in need of protection or an order for crown ward. They do, however, suggest that the role of the foster parent changes and their rights to expanded participation or party status may not be reserved for only the rarest of cases once those determinations have been made. A less restrictive approach should be applied to situations where the foster parent is seeking expanded participation or party status to address the issue of placement, or access once there has been a finding in need of protection or an order for crown ward. The less restrictive approach should apply at this stage whether the foster parent’s position is aligned with the Society’s, or not. While the foster parent may not feel the need to participate in cases where the Society’s position is wholly aligned with them, that situation should not preclude them from participating, if their participation is otherwise in the best interest of the child.

[17] Each case will turn on its specific facts. This was recently confirmed by the Court of Appeal in A.M. In A.M., the motion’s judge had granted party status. The motion judge’s decision was overturned by the Divisional Court. The Court of Appeal reinstated the motion Judge’s order and provided the foster parents with party status. In coming to that determination, the Court of Appeal adopted the reasoning and tests laid out by Justice Czutrin in R.D. and made the following comments at para 20:

In our view, both r. 7(4) and s. 39(3) of the CFSA preserve the court’s 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 child’s best interests. The motion judge determined that on the facts of this case, the F-A mother’s participation as a party was both necessary and in the child’s best interests. Further, we do not agree with the Divisional Court’s assessment of the delay and legal interests factors.

[18] The Court of Appeal went on to cite the Children’s Aid Society of London and Middlesex v. H.(S), 2002 CanLII 46218, as setting out the relevant questions to determine whether to add a party as follows:

(a) Whether the addition of the party is in the best interest of the child;

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

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

(d) whether the proposed party is a person capable of putting forward a plan that is in the child’s best interests.

[19] The Court of Appeal also adopted Justice Czutrin’s comments in paragraphs 20 and 21 of R.D. and endorsed his list of additional relevant considerations. (See para 25 of A.M.).

[20] In R.D. Justice Czutrin dealt with the appeal of a decision by Justice Jones to deny the foster mother party status and expansive participatory rights in a hearing for a protection application regarding a two year old child. Justice Czutrin granted the appeal, allowing the foster parent to have party status. In coming to that determination, he made the following findings:

(14) Once there is a finding of a need for protection, the Court’s must make an order consistent with the child’s best interests in accordance with s. 37(3) of the CFSA. It must collect and consider all available, relevant evidence to make this determination.

(15) In submissions, Society counsel conceded that the foster mother was the person who best knows this child. The child has never lived in a home other than hers. I do not see how having the foster mother lead evidence and cross examine other witnesses would derail the hearing in this case. At this stage, the question before the Ontario Court of Justice is what is in the best interests of the child. It is a child-centred consideration.

[21] At paras 20 and 21, Justice Czutrin noted the following:

(20) 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 motion’s judge overemphasized the option of placing the child with his grandparents in the context considering the foster parent’s rights of participation at this stage. The motion’s 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.

(21) 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 CSFA;

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 parent’s involvement would clarify the best interests of the child.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 the Court of Appeal had to determine whether the Divisional Court erred in overturning the motion judge’s decision to add the foster-to-adopt mother (the “F-A mother”) as a party to the child protection proceeding. Hoy A.C.J.O. van Rensburg and Roberts JJ.A. in giving the judgement of the court held that:

[20] In our view, both r. 7(4) and s. 39(3) of the CFSA preserve the court’s 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 child’s best interests. The motion judge determined that on the facts of this case, the F-A mother’s participation as a party was both necessary and in the child’s best interests. Further, we do not agree with the Divisional Court’s assessment of the delay and legal interest factors.

[22] The decision often cited for establishing criteria for adding parties in child protection proceedings is Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC), [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 child’s 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: Children’s 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 Children’s Aid Society of Toronto v. S.(R.D.) (2008), 2008 CanLII 8607 (ON SC), 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 judge’s 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 parent’s 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 parent’s 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.

In Children's Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC) a motion was brought by J.S., who was the foster mother of the child, K.B.-W. J.S. sought an order requiring the Children's Aid Society of London and Middlesex (“the London Society”) provide to her a copy of its file in respect of L.W. and A.B., the parents of K.B.-W., and any other relief this court deems just. K.B.-W., over 3 year

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