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  • Writer's pictureAnisa Arra

Court of Appeal allows foster mother to be a party in a child protection case

Child protection proceedings are governed by the Child and Family Services Act [the "Act"]. The Act does not expressly provide party status to foster parents, who are considered to not have a legal interest in the child protection proceedings.

In this case, the child was made a ward of the Society when he was 2 months old. At the age of 7 months, he was placed in the care of a foster-to-adopt mother. The Society brought and application to make the child a Crown ward and initially supported the foster mother's intention to adopt the child. When the child's aunt and her partner wanted to adopt the child as well, the Society changed its position to support that plan instead. The foster mother brought a motion seeking to be added as a party to the child protection proceeding. The child was 2 years old at the time of the appeal hearing.

The motion judge observed that the paramount purpose of the Act is the best interests of the child. The objective is clearly stated in section 1 of the Act. His Honour noted the difference between foster parents and foster-to-adopt parents, who have a clear understanding with the society to adopt the child. The child’s birth mother was in favour of the foster mother adopting the child. The foster mother had agreed the birth mother would have access to the child. The motion judge concluded the Act gives the court discretion to make a foster parent a party. On the facts of this case, it was in the child's best interests to allow the foster-to-adopt mother to be a party in the case. The Divisional Court overturned the judge's ruling concluding that a foster parent should be added as a party only in exceptional circumstances. In the case of foster parents, the court should consider their existing participation rights under s. 39(3) of the Act.

The Court of Appeal disagreed with the Divisional Court. The motion judge's decision should not have been interfered with absent a palpable and overriding error in law or an unreasonable exercise of discretion. Neither occurred in this case. The criteria for adding parties in child protection cases were established in the decision CAS of London and Middlesex v H.(S.), [2002] OJ no 4491 (QL) which are as follows:

  1. whether the addition of the party is in the best interest of the child;

  2. whether the addition of the party will delay or prolong the proceedings unduly;

  3. whether the addition of the party is necessary to determine the issues; and

  4. whether the proposed party is a person capable of putting forward a plan that is in the child’s best interests.

All factors do not need to favour the person seeking party status for the court to add him or her. The Court of Appeal agreed with the decision in Catholic Children’s Aid Society of Toronto v. S.(R.D.), 2008 CanLII 8607 (ON SC) which states that whether to allow foster parents greater participation rights or party status is made on a case-by-case and contextual basis. The Court of Appeal found at paras 27-28 that,

In this case, the motion judge began with the paramount purpose of the CFSA to promote the best interest and well-being of children: he correctly identified and applied the most important consideration.

He referred... to the child’s arrival at the [foster-to-adopt] mother’s home in a state of emotional disarray, and his emotional progress in recovery in the following months. He concluded that, as a result, the [foster-to-adopt] mother was in the best position to inform the Court as to the specific needs and best interest of the child.

The decision does not turn on the foster mother's legal interest but rather the protection and pursuit of the child’s best interests, as correctly pointed out by the motion judge.

This decision raises some concern as it may mean that more birth parents will find themselves in a situation where they have to defend their case from both the society and the foster parents. Birth parents are often in a worse economic position than foster parents. However, the decision may simply apply more narrowly to distinguish foster parents and foster-to-adopt parents, with the latter being more likely to being granted party status as a result of this decision.

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