“Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.
While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status: See Ontario Child Welfare Secretariat Policy Development and Program Design Division, “Ontario Kinship Service Standards”, online: <oacas.libguides.com/ld.php?content_id=34692073> ; Ontario Association of Children’s Aid Societies, “Kin-based care”, online: <oacas.libguides.com/family-engagement/kin-care>. Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.
Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:
“foster care” means the provision of residential care to a child, by and in the home of a person who,
receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),
and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added]
The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.
Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.
As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:
… the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that “to express one thing is to exclude another” and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, “legislative exclusion can be implied when an express reference is expected but absent”. [Citations omitted.]”
Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 (CanLII) at 40-45