“It is clear from these provisions that grandparents are not automatically entitled to party status. Grandparents, however, may be named as parties in other ways. First, it may be possible to add grandparents as parties if they qualify as “parents” under clause (d) of the definition of “parent” in subsection 37(1). As mentioned above, Mr. W.H. and Mrs. R.H. have not demonstrated the requisite “settled intention” to fit within that definition.
Second, grandparents may also be granted a “limited party” status under subsection 39(3). Strictly speaking, persons falling within subsection 39(3) are not parties; however, such persons receive some equivalent rights, such as receiving notice, being present at the hearing, being represented by a lawyer and making submissions. Under the circumstances, Mr. W.H. and Mrs. R.H. did not care for their grandchildren continuously for six months prior to the hearing. Thus, they are not entitled to this quasi-party status.
Third, grandparents may be named as parties, if, in exercising its discretion under the rules, the court decides that they should be parties.
The majority of cases that consider the court’s discretion to add parties in child protection cases were decided under the former rules. The former rule 10 of the Rules of the Unified Family Court,R.R.O. 1990, Reg. 202, as amended, was identical to rule 11 of the Rules of the Ontario Court (Provincial Division) in Family Matters,R.R.O. 1990, Reg. 199, as amended:
| 11.— The court may order that any person whose presence as a party is necessary to determine the matters in issue shall be added as a party. |
The courts have added grandparents as parties under the former rule for various reasons. In Children’s Aid Society of Algoma v. Robert M. et al.(1997), 77 A.C.W.S. (3d) 777, 1997 CanLII 6398 (ON CJ), 1997 CanLII 6398, [1997] O.J. No. 5444, 1997 CarswellOnt 5459 (Ont. Prov. Div.), Provincial Judge John Kukurin allowed the grandparents’ motion because of their connection with the child by blood and native heritage. In addition, the court found that the grandparents’ actual care of the child may have exceeded the care that other people, already granted party status, had given the child. Finally, the court decided that the applicants did not add to the complexity of the proceedings and it was desirable to give the same status to all of the people seeking to be permanent caregivers.
Similarly, in Children’s Aid Society of Hamilton-Wentworth v. Annette M. and William R.(1990), 73 D.L.R. (4th) 102, 1990 CanLII 3819 (ON SC), 1990 CanLII 3819, [1990] O.J. No. 1723, 1990 CarswellOnt 936 (Ont. U.F.C.), Senior Justice David M. Steinberg agreed that the grandmother should be added as a party. Upon review of the evidence, the court did not hesitate to add her because she had demonstrated in the past that she was available when the children were in need of protection. Since it was probable that the grandmother could offer a plan that was in the children’s best interests, her motion was granted.
In Re Children’s Aid Society of Kingston and Frontenac County and Holly Florence K. (An Infant)(2000), 100 A.C.W.S. (3d) 425, 2000 CanLII 20582 (ON SC), 2000 CanLII 20582, [2000] O.J. No. 3854, 2000 CarswellOnt 3711 (Ont. Fam. Ct.)., Justice Mary F. Dunbar refused to add as a party a grandfather whose past behaviour included allegations of sexual misconduct with the child in question, as well as with other children. Counsel for the grandfather argued that his presence was necessary for a determination of the issues. The court disagreed at paragraph [11]:
| [11] . . . To grant the grandfather party status so that he may “clear his name” is not the proper focus for this matter and would undoubtedly delay and prolong the matter unduly. That is clearly not in the best interests of the child nor in compliance with the provisions, intent and philosophy of the Child and Family Services Act as a whole and in the Family Law Rules where procedural time periods are set and the effects of delay are to be considered by the court as primary factors. |
The current rule 7 is worded differently than the former rule. It has been interpreted, however, as giving judges the same, broad discretion that they had under the former rule. In Children’s Aid Society of London and Middlesex v. J.P.(2000), 95 A.C.W.S. (3d) 316, 2000 CanLII 20732 (ON SC), 2000 CanLII 20732, [2000] O.J. No. 745, [2000] O.T.C. 139, 2000 CarswellOnt 718 (Ont. Fam. Ct.), a decision considering the party status of foster parents, Justice Mary E. Marshman stated at paragraph [4]:
| [4] Rule 7(5) provides that the court may order that any person who should be a party shall be added as a party. The rule gives no direction as to how the court should exercise its discretion. The former rule and case law suggests that a person ought to be made a party if that person’s presence is “necessary to determine the matters in issue”. I am satisfied that I have the discretion to add the foster parents as parties to this proceeding if their presence is necessary to determine the issues. |
In a more recent case, Justice Jennifer A. Blishen implicitly acknowledged her discretion under subrule 7(5) and refused to add a stepfather to status review proceedings: see Children’s Aid Society of Ottawa v. Shelley Y.(2002), 113 A.C.W.S. (3d) 845, 2002 CanLII 46212 (ON SC), 2002 CanLII 46212, [2002] O.J. No. 1256, 2002 CarswellOnt 1159 (Ont. Fam. Ct.).
If any doubt remains concerning the court’s discretion to add parties, subsection 68(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended by S.O. 1991, c.46] incorporates subsection 66(2) and allows the Family Rules Committee to make rules even though they may alter or conform to the substantive law in relation to the “joinder of claims and parties”. Thus, this court has jurisdiction to add a party to a child protection proceeding in an appropriate case, notwithstanding the apparent limitations of section 39 of the Child and Family Services Act; see Children’s Aid Society of Hamilton-Wentworth v. Annette M. and William R., supra.
Since the court’s discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former rules continue to apply. In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:
| (i) | whether the addition of the party is in the best interests of the child, | |
| (ii) | whether the addition of the party will delay or prolong proceedings unduly, | |
| (iii) | whether the addition of the party is necessary to determine the issues, and | |
| (iv) | whether the additional party is capable of putting forward a plan that is in the best interests of the child.” |
Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC) at 12-22.