Catholic Children’s Aid Society of Toronto v. S. (R.D.)
THE CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO (Applicant / Respondent) and
R.D.S.de L. (Respondent) and A.S. (Appellant)
Ontario Superior Court of Justice
Heard: February 4, 2008
Judgment: March 5, 2008
Counsel: Shamshad Bee for Applicant / Responden
Martha Héder for Child
John Schuman for Appellant
APPEAL by foster mother from judgment reported at Catholic Children’s Aid Society of Toronto v. S. (R.D.) (Ont. C.J.), dismissing foster mother’s motion for party status or more expansive participatory rights at hearing.
1 A.S. (“the foster mother”) appeals the decision of Justice Jones of the Ontario Court of Justice (“the motion’s judge”), dated October 15, 2007, and reported at  O.J. No. 421 (Ont. C.J.). Justice Jones denied the foster mother party status and expansive participatory rights in hearings for a protection application regarding E.P.E.S. (born June 20, 2005) (“the child”). The Office of the Children’s Lawyer, acting on behalf of the child, supported the foster mother in her applications and supports her in this appeal. She is opposed by counsel for the Catholic Children’s Aid Society of Toronto (“the Society”).
2 Rule 7(5) of the Family Law Rules, O. Reg. 114/99, gives the Court discretion to add any person as a party. Section 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), gives a person who cared for a child during the six months immediately preceding the hearing rights to receive notice, be present at the hearing, be represented by a solicitor, and make submissions to the court. Section 39(3) explicitly includes foster parents among those who can obtain these expanded participatory rights.
3 The child was found to be in need of protection on February 10, 2006, pursuant to s. 37(2)(b) of the CFSA, because his mother admitted to using cocaine during pregnancy and labour. The child was born with cocaine in his system. He was placed with the foster mother when he was 10 days old and has remained in her continuous care since that time, more than two and a half years.
4 Despite the finding two years ago that the child was in need of protection, no disposition has yet been made. There was a delay of four months after the finding was made until a home study was requested of the child’s maternal grandparents, who live in Brazil and with whom the child’s three half-siblings live. The home study was completed on November 30, 2006, and on July 6, 2007, the Society recommended that the child be placed with the grandparents instead of being made a Crown ward without access for the purposes of adoption. At that time, the child had been in the care of the foster mother for over 20 months.
5 The statutory basis for the Society’s recommendation is s. 57.1 of the CFSA, which came into force in 2006. Where a child has been found in need of protection and the Court is satisfied that a court order is necessary to protect the child in the future, it “may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.”
6 The Society’s proposed disposition is to place the child with his grandparents, non-parties who reside in another country and have never met the child. There is no proposed supervision order. The Office of the Children’s Lawyer will not consent to the Society’s plan on the basis that such an arrangement would not be in his best interests.
7 The foster mother seeks to have the Court order that the child become a Crown ward without access for the purposes of adoption, which was the relief sought by the Society prior to the July 2007 amendment to its application. If such an order were made, the foster mother would gain new participatory rights under the CFSA, and she would then seek to adopt the child. There would also be further procedural requirements to be met before the child could be placed outside of Ontario. The Office of the Children’s Lawyer does support this plan.
8 Having been denied party status or expanded participatory rights in the hearing by the motion’s judge, the foster mother appeals. Her grounds of appeal include that
1. There are legitimate concerns about the Society’s proposed plan
2. The Society has offered no evidence that the child’s special needs would be met by its plan;
3. The foster mother’s absence from the proceeding would preclude the court from hearing evidence relevant to the child’s needs and prevents her from responding to the Society’s plan because she has no right to review the plan;
4. The court must consider the length of time a child has been in care and the effect on the child of disrupting his relationship with his foster mother;
5. While the CFSA requires the court to consider placement with the extended family, it does not require the court to give those placements priority in determining what is in the child’s best interests; and
6. The relief sought by the Society would effectively deprive the foster mother of her legal rights under the CFSA.
9 While the foster mother also brought a judicial review application and asked me to invoke the Superior Court’s parens patriae jurisdiction, I declined to consider this request. I found it to be premature, as the matter was still appropriately before the Ontario Court of Justice.
10 In the course of the appeal, I was made aware of the following facts that were not before the motions’ judge:
1. The foster mother took her complaints about the Society’s change of position to the Child and Family Services Review Board. Not surprisingly, the board concluded that it had no jurisdiction over the matter given the current status of the child under the CFSA. However, the Board also found the foster mother’s position to be compelling and found that placing the child with his extended family, who he has never met, in Brazil was unlikely to be in his best interests. The Board expressed regret that the foster mother was not able to participate more actively in the protection proceedings and stated that she appeared to have a viable plan for the child and to be the most significant person in the child’s life.
2. The Society and the Office of the Children’s Lawyer have agreed to retain Dr. Dianne Vallance to conduct an assessment. They agreed that this assessment would not be a s. 54 CFSA assessment. Dr. Vallance was asked to:
(a) Review any assessment/reports regarding the child provided to her by the Society and review any additional materials (including those that she may request) as agreed upon by the parties;
(b) Meet with the child for approximately 45 minutes;
(c) Observe the interaction between the child and the foster mother;
(d) Observe both a separation and a reunion of the child and his foster mother; and
(e) Respond to a series of eight questions to be put to her by the parties
11 In coming to her conclusion that the foster mother should not be granted party status under Rule 7 of the Family Law Rules or an expanded participatory role under section 39(3) of the CFSA, the motion’s judge found at paragraphs 17-23:
Under section 39(3), Ms. A.S. has the right to be present, be represented by counsel and make submissions. In the circumstances of this case, is it necessary to grant her further participatory rights or even party status to enable the court to fairly determine the outstanding issues in the case?
… I note that the child has his own lawyer appointed under section 38 of the Act who has the same rights as a party under subrule 7(4)… I do not see that it is necessary to grant the foster mother party status in order to have this evidence before the court or to permit her further participatory rights at the hearing under subsection 39(3) to adduce evidence in light of the fact that the child’s lawyer is prepared to call this evidence. Given the fact that the child’s lawyer is supporting the foster mother’s position that the plan of the society will not meet the child’s best interests, she can call the foster mother as a witness in her case.
If I were to grant the foster mother the right to adduce evidence under subsection 39(3) or grant her party status, I am concerned that such a decision would prolong the proceeding and result in the adducing of irrelevant evidence. Furthermore, in my view, granting the foster parent party status in the course of this case would be contrary to the principles, procedure and scheme of the Child and Family Services Act.
I accept the position taken by the society that, at this preliminary stage, I must consider the purposes of the Act and give support to the autonomy and integrity of the family and take the least disruptive course of action that is available and appropriate in the particular case. I note that, under section 57, I must consider whether it is possible to place a child with a relative or neighbour or a member of the child’s community or extended family under the terms of a supervision order before considering a society wardship or Crown wardship order.
. . . . .
It is not appropriate to consider the foster mother’s plan unless and until I am satisfied that the plan put forward by the grandparents, which is supported by the society, is not in the child’s best interests. I am not prepared to have the foster parent present her plan on the basis that her plan represents a superior plan to the family plan of sending the child to live in Brazil with his grandparents and three half siblings. In the words of Provincial Judge A. Peter Nasmith in Children’s Aid Society of Metropolitan Toronto v. Donna S. and Fred S. (1991), 28 A.C.W.S. (3d) 205, 11 L.W.C.D. 424,  O.J. No. 1384 (Ont. Prov. Div.), it is “anathema to the role of foster parents at this preliminary state of the proceedings to be setting them up as permanent caretakers and to have them staking their own custodial claims on the child”. The court has yet to determine what dispositional order under section 57 is in this child’s best interest.
In resisting Ms. A.S.’s request for party status or an expanded role under subsection 39(3), I adopt the reasoning in R.L. and T.L. v. Children’s Aid Society of Niagara Region (2002), 167 O.A.C. 105, 34 R.F.L. (5th) 44, 2002 CanLII 41858,  O.J. No. 4793, wherein the Ontario Court of Appeal noted at paragraph :
 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.
12 The paramount purpose of the CFSA was amended in 1999, subsequent to the often-relied-upon decision of Provincial Judge A. Peter Nasmith in Children’s Aid Society of Metropolitan Toronto v. S. (D.) [(July 26, 1991), Doc. Toronto C2349/89 (Ont. Prov. Div.)] The amended paramount purpose reads:
1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
3. To recognize that children’s services should be provided in a manner that,
i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate….
13 While recognizing that s. 57 of the CFSA requires consideration of the grandparents, I find that the motion’s judge incorrectly concluded that the foster mother’s plan could not be considered unless and until the plan put forward by the Society was rejected.
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.
16 The foster mother cannot ask the Court to order an adoption order in her favour at this stage. She can, however, speak against the Society’s proposed custody order. She can make suggest that the trial judge make an alternative order in the best interests of the child, such as Crown wardship without access for the purpose of adoption. In order for the foster mother to make these submissions she should, in the circumstances of this case, be able to lead evidence and cross examine the Society’s witnesses. It is common practice in child protection hearings where orders for Crown wardship without access are requested to lead evidence on adoption feasibility and on whether a current foster placement is an option for permanency planning.
17 The motion’s judge failed to consider the evidence the foster mother might lead and instead placed responsibility on the Office of the Children’s Lawyer to bring evidence of their mutual positions. The responsibility of the Office of the Children’s Lawyer is to the child, and I agree with its submission that its role cannot include advocating for the foster parent. The foster mother should be able to lead any evidence that would help the court meet its obligation of assessing the Society’s plan and making a placement consistent with the child’s best interests.
18 For example, it is clear that the child’s attachment and possible severance from the foster mother will be presented as evidence at trial, and the Court would benefit from the evidence that the foster mother’s counsel could bring regarding this issue. I am also not certain if the motion’s judge was aware that the Society was contemplating hiring an assessor whose mandate would include observing the foster mother and child; the foster mother could bring significant evidence regarding this assessment, as well. I am also told that the foster mother and her counsel did not see the home study report completed about the grandparents. At the moment, the foster mother cannot receive disclosure, cannot call evidence and cannot have her counsel cross-examine any witnesses. These examples demonstrate that the Court would be better able to evaluate the best interests of the child if the foster mother had greater rights of participation at the hearing.
19 The motion’s judge erred in failing to consider the impact of the new s. 57.1, which allows for a custody order to non parties. This new section asks the court to make a custody order in the child’s best interests. While the section does not speak to whether a custody order can only be made to a party, I think it would be preferable to include as parties those individuals who may take custody of a child.
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 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.
22 This case is distinguishable from the Court of Appeal’s decision in L. (R.) v. Children’s Aid Society of Niagara Region [2002 CarswellOnt 4262 (Ont. C.A.)], on which the motion’s judge relied. In L. (R.), the Court of Appeal was not asked to consider granting a foster parent expanded participatory rights under s. 39(3) or party status under Rule 7. Rather, it was asked to determine whether a Superior Court judge erred in refusing to invoke the Court’s parens patriae jurisdiction to interfere with pending CFSA protection proceedings before the Ontario Court of Justice. I have declined to exercise this Court’s parens patriae jurisdiction here, finding it premature to do so in this case. And, in fact, the Court of Appeal recognized that the CFSA leaves open the possibility of increased involvement of foster parents, as is the issue before me in this case.
23 The motion’s judge was concerned about delay and prolonging the proceeding and the adducing of irrelevant evidence. I cannot come to the same conclusion. The foster mother has counsel and has not asked to adjourn or delay. No trial date has been set. Moving forward, the trial management conference and the trial judge can guard against the introduction of irrelevant evidence and control the process to avoid duplication and unnecessary cross examination. Since it appears that the Officer of the Children’s Lawyer has a common interest with the foster mother, the trial judge will be in a position to direct the trial process as to order of presentation and rights and as to restrictions, if any, on examination and cross examination. This is not different from any other case in which there are multiple parties with similar interests.
24 For reasons I have stated, I find that the motion’s judge erred in law in failing to appropriately consider an expanded role for the foster mother in the circumstances of this case. I will therefore allow the appeal in part.
25 The foster mother is granted the following further participatory rights in the hearing under section 37(3) of the CFSA:
1. She is entitled to pretrial disclosure as a party.
2. She is entitled to call witnesses and cross examine witnesses.
3. She is to provide a list of witnesses and will say statements of witnesses she intends to call prior to trial, as directed by the case management judge.
Appeal allowed in part.