In Ontario, the Child and Family Services Act allows the Children’s Aid Society (CAS) to remove a child/children from the care of their parents, and for the CAS to ask a judge to make a court order to protect the child/children. In cases where the CAS has removed a child from parental care, the CAS must make their request to the court within five days.

Third parties such as grandparents, family members or close friends often wish to get involved in child protection cases.  Ontario courts have developed a test to determine whether they should exercise their discretion in adding these additional parties to the proceedings.

The Test

In order to decide whether or not to permit a third party to be involved in the proceedings, the Court will ask:

  • Whether the addition is in the child’s best interest;
  • Whether the addition will delay or prolong the proceeding unduly;
  • Whether the addition is necessary to determine the issue;
  • Whether the additional party is capable of putting forward a plan that is in the child’s best interests.

The Test in Practice

The decision in Valoris v. J.R. and C.L illustrates the application of this test.

In that case, the grandmother of the child at the centre of the child protection proceedings brought a motion to be added as a party to the proceedings.

The grandmother had apprehended the child from his mother’s care shortly after his birth. The grandmother had received information from the Batshaw Youth and Family Centres (a government funded organization that is devoted to the welfare of children and their families), indicating that the Centre had been involved with the mother and had removed her four other children from her care due to her serious drug addiction problem, criminal charges for child abuse, and evading arrest by police.

The Centre had contacted the grandmother while the mother was still pregnant and told the grandmother that they feared for the safety of the child that would be born shortly. The mother was subsequently arrested and was in jail at the time the grandmother brought her motion.

The grandmother argued the she is capable and has the means to care for the child, and would eventually give access to the mother “when the time is right”. The grandmother requested to be able to file a plan of care.

The grandmother put forth evidence to indicate the mother was an unfit mother including:

  • That she had left the hospital where she gave birth wearing her hospital gown;
  • She had admitted to using heroin;
  • The father of the child was also a heroin user;
  • Her four other children had demonstrated signs of physical and sexual abuse when they were apprehended by CAS.

The court considered the abovementioned test in making its final determination. They ultimately dismissed the grandmother’s motion, stating:

Although the grandmother may be motivated by good intentions, I have come to the conclusion that it is not in the best interests [the child] that she be added as a party.  His best interests are clearly that a good home by way of adoption be found for him as soon as possible.  Nor am [I] satisfied, given the overall evidence, that the grandmother is capable of putting forward a plan that is in the best interests of the child.  To add her as a party would more probably than not simply delay what is clearly the best solution for [the child] namely a removal from the influence and negative impact of his parents and finding a good family to adopt him.

In this case, the grandmother had also had her own difficulties raising her children when they were young, and they had been removed from her care as teenagers. Prior to the grandmother requesting to be added as a party to the child protection proceedings, the CAS had filed an application to make the child a ward of the Crown to be placed for adoption. The Court felt that this would be the better option.

If you are a parent involved in a child protection matter, or are a grandparent or other concerned family member or friend, and have questions about your rights and the well-being of the child, call family lawyer Jason P. Howie at 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.