Ontario Court of Appeal Rules Foster Parents Can Be Party to Proceedings in Child Protection Cases

Written on behalf of Arbesman Hamilton LLP

The Ontario Court of Appeal recently ruled on whether a foster parent can be a party to proceedings in child protection cases – which would allow them to become participants in a case.

Foster Parent to Adopt

At issue in the Court of Appeal’s ruling was a child who had been made ward of Valoris Pour Enfants et Adultes de Prescott-Russell (“the Society”), an organization that offers child protection services.

The child had been placed in the Society’s care in December 2015 at two months of age. In June 2016, the child, who was seven months old at the time, was placed in the care of a foster-to-adopt (“the F-A mother”). The purpose of a foster-to-adopt relationship is that the F-A parent initially serves as a foster parent before ultimately adopting the child.

During this time, the Society filed what is known as a status review application, requesting that the child be made a ward of the Crown and removing the access rights of his biological parents. In Canada, children can become the responsibility of the government if their situation at home includes neglect or abuse. The Society indicated that it would then support the F-A mother as the adoptive parent of the child. A trial was scheduled but later adjourned to allow the child’s biological parents to respond.

Child’s Biological Aunt Expresses Intent to Adopt

In early 2016, the child’s biological aunt and her partner expressed their interest in adopting the child. Thereafter, the Society changed its stance and supported the aunt’s effort. The aunt and her partner filed a motion seeking to be added as parties and for temporary care of the child. In response, the F-A mother also brought a motion seeking to be added as a party to the child protection proceeding.

The trial judge granted the F-A mother party status in the hearing. However, that decision was later overturned in Divisional Court. The Divisional Court stated that the discretion to add a party should be exercised with caution and a foster parent should be added as a party only in exceptional circumstances. The Divisional Court found the trial judge had failed to consider the following factors:

  1. Is adding the party necessary for a determination of the issues in the case?
  2. Would adding the party cause delays in the process?
  3. Does the individual have a legal interest in the child protection proceeding?

Ontario Court of Appeal Overturns Divisional Court Decision

In reaching its decision, the Court of Appeal examined how the trial judge came to his decision. He started by turning to the Child and Family Services Act, which explicitly states that parties to a proceeding under the Act can include “Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing”

The Court of Appeal also agreed with the trial judge’s finding about the F-A mother’s importance in determining the best interests of the child- a critical matter in family law proceedings. The trial judge wrote:

this [F-A mother]; not the biological parents, their extended family members, nor the Society, is in the best position to inform the Court on a Crown wardship hearing as to what the specific needs are and what is in the best interests of this child.

The Court of Appeal ultimately decided the Divisional Court erred in overturning the trial judge’s decision and granted the F-A mother status as a party to the proceeding. We will be sure to update you on further appeals in this case should they occur.

Matters of custody and access of children can be complicated and emotional, particularly in situations where extended families or other parties are involved. If you are involved in such matters, it is important to seek knowledgeable and compassionate legal advice as soon as possible. The experienced family lawyers at Arbesman Hamilton LLP have helped many parents with child custody, access, and related issues. We can help you understand and pursue your rights and ensure the best interest of your children are always protected. We will help you make informed, rational decisions while providing you with pragmatic and honest advice. Contact us online or call us at 416-481-5604 to schedule a consultation.