The motion judge concluded, at para. 47, that “[g]ranting
such rights to non-parties, including a foster parent, is not an
indication by the legislature that a foster parent should not be
made a party”.
 He considered the facts of the case and, at para. 53, found
that “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
 He ordered that the F-A mother be a party to the proceeding or, if a higher court disagreed with that determination, that
the F-A mother have full rights to participate in this proceeding
pursuant to s. 39(3) of the CFSA.
 After the motion judge’s decision, the society amended its
application to the current custodial application under s. 57.1 of
the CFSA supporting the paternal aunt’s plan of care.
Divisional Court Decision
 The Divisional Court noted that the motion judge had not
mentioned rules 7(4) and 7(5) of the Family Law Rules, O. Reg.
7(4) In any of the following cases, every parent or other person who has
care and control of the child involved, except a foster parent under the Child
and Family Services Act, shall be named as a party, unless the court orders
1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VI of the Child and Family Services Act).
. . . . .
(5) The court may order that any person who should be a party shall be
added as a party, and may give directions for service on that person.
 While it rejected the society’s argument that the effect of
rule 7(4) is that the court cannot make a foster parent a party in a
child protection case, it concluded that the discretion to add a
party under rule 7(5) should be exercised with caution and 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 CFSA.
 The Divisional Court held that in determining whether a
foster parent should be added as a party, the court should consider the following criteria: