Children’s Aid Society of the Districts of Sudbury and Manitoulin v. E.L., 2020 ONCJ 677

Background

The case involves a child protection proceeding under the Child, Youth and Family Services Act (CYFSA). The Children’s Aid Society of the Districts of Sudbury and Manitoulin (the Society) initiated proceedings concerning a child who was apprehended at birth in July 2018. The child was initially placed in a foster home, then moved to a kinship placement with an aunt and uncle, but later returned to Society foster care.

The paternal grandparents later came forward as caregivers and were granted temporary care and custody of the child in July 2019, following a positive kinship assessment. They had cared for the child for over 17 months when the Society changed its position, filing an amended motion in January 2020 seeking extended society care without parental or grandparental access.

The paternal grandparents sought to be added as parties to the proceedings to advocate for continued custody, which was opposed by the biological parents. The Society took no position on their motion.

Legal Framework

1. Child, Youth and Family Services Act (CYFSA), S.O. 2017, c.14

The CYFSA governs child protection proceedings in Ontario. Key provisions relevant to this case include:

• Section 79(1): Defines statutory parties in child protection cases, including parents and the Society. Grandparents are not automatically included as parties.

• Section 79(3): Provides participatory rights to certain individuals (e.g., caregivers of at least six months), allowing them to receive notice, attend hearings, and make submissions. However, they must seek court approval to take further steps.

• Section 74(1): Expands the definition of a “parent” to include individuals with lawful custody of a child. The paternal grandparents qualified as parents under this section due to their court-ordered temporary custody.

• Section 101(4): Requires courts to consider kinship placements before making an order for extended Society care.

2. Family Law Rules, O. Reg. 114/99

The Family Law Rules provide additional guidance on adding parties:

• Rule 7(1): A person may be a party if they make a claim or have a claim made against them.

• Rule 7(4): Requires courts to add any person who has care and control of a child, unless they are a foster parent.

• Rule 7(5): Allows the court to add a party if it determines that their inclusion is necessary for a just determination of the case.

3. Case Law on Adding Grandparents as Parties

The court reviewed prior decisions on grandparent party status, including:

• Children’s Aid Society of London and Middlesex v. S.H. (2002): Established factors for granting party status:

  1. Whether it is in the child’s best interests.

  2. Whether it will cause undue delay.

  3. Whether the additional party is necessary to determine key issues.

  4. Whether the party can put forward a viable care plan.

  5. Whether they have a legal interest in the proceedings.

• Children’s Aid Society of Toronto v. D.E. (2016): Found that adding a grandparent was necessary when no other party was advancing their plan for the child’s care.

• A.M. v. Valoris pour enfants et adultes de Prescott-Russell (2017 ONCA 601): Stated that not all factors must be satisfied for a party to be added.

Court Decision

Justice Kukurin ruled in favor of the paternal grandparents, granting them party status for the following reasons:

• They met the criteria established in case law.

• They were statutory “parents” under the CYFSA.

• Their plan provided a viable alternative to extended Society care.

• It was in the best interests of the child for their care plan to be considered.

While the court acknowledged that adding parties could cause some delay, it determined that the benefit of ensuring the child’s best interests outweighed this risk.

Concerns About Delay

Justice Kukurin criticized the significant delay in resolving the case, noting that:

• A child protection finding should have been made within three months of apprehension (as required under CYFSA s.96).

• The parents’ conduct, including self-representation, had contributed to the delay.

• The Society’s shifting positions had created instability for the child.

The court urged all parties to act with greater urgency and move the case toward a final resolution.

Final Orders

• The paternal grandparents were granted party status.

• The Society must serve them with the amended application.

• They have 30 days to file an Answer.

• The biological parents were advised to update their responses as well.

• The case should proceed promptly to determine the child’s permanent placement.

​

Children’s Aid Society of Toronto v. R.I., 2022 ONCJ 612

Background

This case concerns three siblings, J.R. (born 2009), N.M. (born 2014), and A.I. (born 2017), who were the subject of a child protection application by CAST due to concerns of physical abuse and parental fitness.

• History of Abuse Allegations:

  • J.R. and N.M. were physically disciplined by their parents, including incidents of corporal punishment using objects.

  • In 2019, both parents were convicted of assault:

    • B.I. (stepfather) was convicted for assaulting J.R.

    • R.I. (mother) was convicted for assault with a weapon against J.R. and N.M.

  • The children were temporarily placed in the care of their maternal grandparents.

• Previous Legal Orders:

  • A 2012 Newmarket Superior Court order granted R.I. sole custody of J.R.

  • A 2018 Oshawa Superior Court order granted the maternal grandparents weekly access to the children.

Issues Before the Court

1. Determining Custody & Supervision:

   • Whether a further court order was necessary to protect the children’s well-being.

   • Whether the children should remain with their respective caregivers under a supervision order.

2. Sibling & Grandparent Access:

   • Ensuring consistent contact between J.R., N.M., and A.I., given the parents' reluctance to facilitate visits.

   • Addressing the maternal grandparents' request for access to N.M. and A.I.

Legal Framework

1. Governing Legislation

The case was decided under the Child, Youth and Family Services Act, 2017 (CYFSA), which establishes child protection standards in Ontario. Key provisions considered include:

• Section 74(2)(b)(i) & (ii) CYFSA – Defines when a child is “in need of protection,” particularly where there is a likelihood of physical harm inflicted by caregivers.

• Section 101(1) CYFSA – Establishes the legal test for a child protection order, requiring the court to determine whether intervention is necessary for the child’s future protection.

• Section 101(7) CYFSA – Allows the court to impose reasonable terms and conditions on a supervision order to ensure the child’s well-being.

• Section 101(8) CYFSA – States that if a child is found in need of protection but no further court order is necessary for future protection, the court must return the child to their previous caregivers.

• Section 102(6)(b) CYFSA – Prevents the Ontario Court of Justice from making a custody order under section 102 if it would conflict with an existing order from the Superior Court.

• Section 104(1) CYFSA – Grants the court discretion to make, vary, or terminate access orders in the best interests of the child.

2. Key Case Law Considered

• Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165

  • This Supreme Court of Canada decision emphasizes that child protection orders must account for emotional ties between children and caregivers. The ruling supports the view that an order may be necessary to prevent future emotional harm, even if immediate risks of abuse have been mitigated.

• Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783

  • Highlights the necessity of considering the harm a child might suffer by losing relationships with key figures, including parents, siblings, and extended family members.

• Children’s Aid Society of Hamilton v. C.(K.), 2016 ONSC 2751

  • Stresses that courts must evaluate the risk of emotional harm when assessing whether continued access should be granted between a child and significant individuals in their life.

Court’s Findings

• The parents had completed counseling and parenting programs, but there was ongoing reluctance to support sibling and grandparent access.

• The grandparents had provided stable care for J.R. for most of his life, and he wished to remain with them.

• The parents' religious and ideological beliefs influenced their opposition to grandparental and sibling contact.

• The existing Superior Court orders (from 2012 and 2018) were outdated and needed to be addressed to reflect the children's best interests.

Final Disposition

1. Custody & Supervision Orders

• J.R.:

  • Remains in the care of his maternal grandparents under a 12-month supervision order.

  • Grandparents granted authority to obtain passports and government documents for J.R.

  • Grandparents permitted to travel with J.R. without parental consent.

  • J.R. to have access to his siblings and mother as per his wishes.

• N.M. and A.I.:

  • Remain in the care of their parents under a 12-month supervision order.

  • Parents must facilitate monthly access between N.M., A.I., and J.R. at the grandparents’ home.

  • Parents prohibited from using physical discipline.

2. Court-Ordered Access

• Sibling and Grandparent Access:

  • Monthly access scheduled on the third Sunday of every month (10 AM – 6 PM).

  • If a visit is missed due to illness or vacation, a makeup visit must be scheduled.

  • Access to take place at the grandparents’ home or another agreed location.

• Mother’s Access to J.R.:

  • To be arranged in accordance with J.R.’s views and preferences, with the frequency, duration, and supervision level at the grandparents’ discretion.

3. Status Review

• A status review hearing must be held before the expiry of the 12-month supervision orders.

Key Takeaways

1. Supervision Orders Were Necessary – The court determined that future harm could occur without ongoing supervision, particularly due to the risk of severed family relationships.

2. Sibling & Grandparent Access Was Legally Mandated – The parents’ resistance to maintaining access led the court to impose a structured visitation schedule.

3. Superior Court Orders Required Amendment – The existing custody and access orders no longer reflected the best interests of the children and needed revision through the Superior Court.

4. Religious & Cultural Considerations Were Addressed – The court acknowledged the parents’ beliefs but ruled that they could not be used to justify severing important familial relationships.