The Ontario Court of Appeal has ruled that a foster mother can be named a party in a child protection case, as it was in the child’s best interests.
“The rights at stake are greatly significant to both the parent and the child,” says Julie Ralhan, a lawyer in private practice who represents parents and other family members in Children’s Aid Society cases. She was not involved in the case.
“At every stage of the analysis, I think it’s important for there to be clarity about what factors a court is to consider in determining whether or not to possibly relinquish the rights of a parent and when a foster parent is added as a party.”
Julie Bergeron, the lawyer who represented the foster mother in the case, however, says considering the best interests of the child were paramount in the determination to add her client as a party.
“It gives guidance to foster parents that care for children when they are placed with them and are able to comment on the well-being and day-to-day routine of the child,” she says.
“This decision will be of great importance for any foster parents who want to be added. . . . If we’re looking at the best interests of the child, we need to know what is going on in the child’s life.”
The case concerned a child who was made a ward of the Valoris Pour Enfants et Adultes de Prescott-Russell when he was two months old in 2015. He was then placed with a foster-to-adopt mother.
The society ward filed a status review application a month later requesting the child be made a Crown ward with no access rights to the biological parents.
The society said that if successful, it would also be in support of the foster mother adopting the child.
But the child’s aunt then expressed interest to adopt the child, and the society decided to support that plan instead.
The aunt and her partner then brought a motion to be made a party to the proceeding, but that motion was adjourned. The foster mother also moved to be made a party.
Justice Paul Kane of the Ontario Superior Court granted the foster mother’s motion, finding that the best interests of the child are determinative of the outcome over the rights of the family or foster parent.
He noted that s. 39(3) of the Child and Family Services Act provides a limited right of participation for foster parents of a child protection case.
The section holds that foster parents who have cared for children in the previous six months are entitled to notice of the proceeding, may be present at the hearing, can be represented by a lawyer and can make submissions to court.
The section holds that they, however, can take no further part in a hearing without leave of the court.
Kane found granting such participatory rights to foster parents was “not an indication by the legislature that a foster parent should not be made a party.”
He also determined that the foster mother was in the best position to inform the court as to the child’s needs and best interests, and as such should have full rights to participate in the proceedings.
The Divisional Court then reversed Kane’s order, finding that foster parents should only be added as parties in exceptional circumstances.
The Divisional Court ruled that adding the foster mother as a party would cause delay, as she opposed the society’s plan, and that she did not have a legal interest in the proceeding.
The Divisional Court determined that Kane had failed to consider these two factors in addition to whether adding a party was needed for determining the issues of the case.
But the Court of Appeal found the Divisional Court had erred in its decision, as the act preserves the court’s discretion in adding a foster parent as a party.
“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,” said the decision of a three-judge panel made up of Associate Chief Justice Alexandra Hoy, Justice Katherine van Rensburg and Justice Lois Roberts.
The Court of Appeal found that while delay and legal interest are relevant, they are not determinative and the overarching consideration is the child’s best interests.
The Court of Appeal also said there was no reason to expect that adding the foster mother as a party would add considerable delay and that the Divisional Court’s view of whether she had a legal interest in the proceeding was too narrow.
Bergeron says the case is going to assist lawyers representing foster families in such proceedings and that the decision provides clarification as to how and when foster parents can be added as parties.
Charlotte Murray, a Toronto lawyer who works in child protection cases, says there is always a concern for parents and societies whenever there is a shift that appears to be an expansion of foster parents’ rights.
“I’m not sure why in this case the conclusion was drawn that party status was necessary,” says Murray, who was not involved in the case.
She adds that the decision may be read to say foster parents with the view to adopt are one step up in terms of being granted party status and that they have been given some kind of presumptive status.
Ralhan says the Court of Appeal did not need to go as far as making the foster mother a party as the court could have called her to testify in the proceedings.
She says parents in such proceedings often have limited resources and are receiving assistance from legal aid.
She adds that letting foster parents be parties will mean that parents will have to defend their case from a foster parent who would likely be in a much better economic position, in addition to being cross-examined by societies.
The Valoris Pour Enfants et Adultes de Prescott-Russell declined to comment.