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CHILD PROTECTION - Children’s aid societies - Supervision or guardianship - Considerations - Best interests of child - Status review - Practice and procedure - Parties

Tuesday, August 29, 2017 @ 8:32 AM  

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Appeal by Valoris pour enfants et adultes de Prescott-Russell (Society) from a Divisional Court decision overturning an order adding the foster-to-adopt mother as a party to child protection proceedings relating to AN. The foster-to-adopt mother had been caring for AN since he was seven months old. AN was placed in the care of the Society at two months old. He was placed with AN in December 2015. In its status review application filed in January 2016, the Society requested an order that AN be made a Crown ward without access rights to the biological parents. A June 2016 plan of care indicated that the Society supported AN’s adoption by the foster-to-adopt mother. The Society subsequently decided to support a plan of care put forth by AN’s paternal aunt and her partner instead. The aunt’s motion to be added to the child protection proceeding was adjourned, while the foster-to-adopt mother’s application to be added as a party was allowed. The motion judge noted that the foster-to-adopt mother had the support of AN’s birth mother, and that both women agreed that there should be continuing access between AN and the birth mother if the foster-to-adopt mother adopted AN. He accepted that the foster-to-adopt mother was in the best position to inform the court as to AN’s specific needs and his best interests. The Divisional Court, noting that the Society had changed its position with respect to the plan of care, found that the motion judge had failed to consider whether the involvement of the foster-to-adopt mother was necessary, whether it would cause delays and whether she had a legal interest in the outcome. The Court reasoned that the Society had the necessary information in its files to determine the child’s best interests and could call the foster-to-adopt mother as a witness, if necessary. It further determined that the foster-to-adopt mother’s addition as a party would add delay since she opposed the Society’s plan and that she lacked a legal interest in the proceeding.

HELD: Appeal allowed. The Divisional Court circumscribed the exercise of its discretion to add a party to the protection proceeding too narrowly. The overarching consideration should have been the best interests of AN. The motion judge’s decision did not contain a palpable or overriding error and was not an unreasonable exercise of discretion such that the intervention of the Divisional Court was warranted. The foster-to-adopt mother was in the best position to inform the Court as to AN’s needs and, where the Society changed its position in the course of the proceedings, her involvement was warranted. She was at risk of not having her position heard because the Society had changed its position.

A.M. v. Valoris pour enfants et adultes de Prescott-Russell, [2017] O.J. No. 3684, Ontario Court of Appeal, A. Hoy A.C.J.O., K.M. van Rensburg and L.B. Roberts JJ.A., July 13, 2017. Digest No. TLD-August282017004