WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: March 5, 2014

Court File No.: Toronto CFO 10 10022-00

Between:

Native Child and Family Services, Applicant

— AND —

J.E.G. & D.C., Respondents

Before: Justice Penny J. Jones

Heard on:

• October 29, 2013
• November 4, 5, 6, 2013
• November 8 & 22, 2013
• January 27, 28, 29, 2014

Reasons for Judgment released: March 5, 2014

Counsel

Ms. Adit Sommer-Waisglass — counsel for the applicant society

Ms. Sharon Worthman — counsel for respondent J.E.G.

Mr. Alex Novak — counsel for the respondent D.C.

Ms. Catherine Bellinger — counsel for the Office of the Children's Lawyer, legal representative for the child

JONES, P.J.J.:

Introduction

[1] This is my decision after trial on a status review application relating to the child K-M.G. - who was born in 2010. In the application, Native Child and Family Services of Toronto (the Society) seeks an order of Crown wardship with access in favour of both parents with a view to adoption with openness.

[2] The Children's Lawyer is in agreement with the position taken by the Society.

[3] The parents Mr. D.C. (the father) and Ms. J.G. (the mother) are opposed to the relief sought by the Society.

[4] The father seeks the immediate return of the child to his care pursuant to a supervision order and is prepared to agree to such reasonable terms of supervision as the court sees fit to impose.

[5] Although the mother, who lives separate and apart from the father, initially was in support of the Society's position, by the end of the trial she was supporting the father in his quest to have the child returned to him under a supervision order.

[6] In the event the court were to make an order for Crown wardship, both parents seek an access order with a view to adoption with openness.

Background Facts

Initial Apprehension and Early Involvement

[7] The child K-M.G. was apprehended at birth by the Children's Aid Society of Toronto because of concerns about the mother's mental health, transience, lack of prenatal care, failure to engage with the Children's Aid Society of Toronto's pregnancy planning service and violence in her relationship with the father of the child.

[8] Shortly after the planned birth apprehension, at the request of the mother and with the consent of Native Child and Family Services, the case was transferred to Native Child and Family Services. (Both parents have native heritage although neither parent is an Indian or member of a native community within the meaning of the Child and Family Services Act, R.S.O. 1990, c. C-11 as amended)

[9] On May 31, 2010 the child was found to be a child in need of protection under section 37(2)(b)(i) and 37(2)(l) of the Act, and was made a society ward for a period of six months. I note that the Society and the mother signed an agreed statement of facts in support of the finding and the disposition, but that the father, who had recently been released from jail after an incarceration relating to a further conviction for domestic violence against the mother, did not participate in the proceedings, and was noted in default.

First Status Review and Reunification

[10] On status review, the mother and the Society signed an agreed statement of facts on March 7, 2011 in support of a six month supervision order placing the child in the care of the mother with access to the father in the discretion of the Society. Although the father did not sign the agreed statement of facts, the court endorsement indicates that he agreed with the disposition and indicated to the court that his access was both regular and satisfactory.

[11] On September 26, 2011, the Society brought a further status review application. Initially, the Society sought a further six month supervision order placing the child with the mother. However, on November 22, 2011 the child was apprehended from the care of the mother because the Society alleged that the child was at risk of physical and emotional harm in the mother's care. Since that date the child has remained in care.

Second Apprehension and Crown Wardship Application

[12] Once the child was apprehended from the care of the mother, the father filed an Answer seeking a six month supervision order placing the child in his care, and, pending disposition, he sought increased access. On April 5, 2012, the Society amended their application to seek an order of Crown wardship with access. This is the application that is currently before the court.

[13] Given the passage of time and the age of the child, the Society had no alternative but to seek a Crown wardship order, however, the Society was prepared to assess the plan of the father by first conducting a section 54 parenting capacity assessment on the father. Should the assessment recommend the Society proceed to investigate the father's plan further, the Society was prepared to increase access, and all going well, to place the child with the father.

[14] By July, 2013, the Society reached the conclusion that the plan of the father was not feasible. The Society requested the matter be placed on a trial list as it no longer felt that a reintegration into the home of the father was in the child's best interest.

Parental Background

[15] The mother is 26 years old and the father is 25 years old. K-M.G. is the first child born to either party.

[16] Both the mother and the father, and their families of origin, have had extensive involvement with the child welfare system. The mother had been a Crown ward since before her second birthday, and later as a youth, she was involved with the Society pursuant to an Extended Care and Maintenance Agreement. (According to the mother she had been in approximately 26 separate homes while in care.) The father had been the subject of a supervision order on two separate occasions and had spent time in foster care as a society ward as a result of chronic neglect, domestic violence and a lack of parenting skills on the part of his mother who, by all reports, had been overwhelmed with parenting five children. (The father testified that his mother had been a "violent parent". He testified that he did not hold it against her because she had to raise 5 boys but he did note that he was not prepared to leave his own child alone with his mother.)

Parental Relationship and Domestic Violence

[17] The mother and father became involved with one another in late 2008. Almost from the start their relationship was a strained one punctuated with frequent arguments and physical confrontations. Apparently their misuse of drugs and alcohol only added to their relationship difficulties. The father was charged with domestic assault, threatening and non-compliance of court orders relating to non-association with the mother on at least two occasions and the mother, although never charged, admitted that the violent behaviour was not all one sided and that she had broken the father's nose during an argument.

[18] Although the father had been convicted of assault and ordered not to have any contact with the mother, the two had difficulties staying apart, and when the mother became upset or further physical confrontations occurred, the father would be charged with a breach of his no contact court order and he would find himself back in jail.

[19] It is within this context that the mother became pregnant and gave birth to K-M.G. When the child was born she was apprehended at the hospital for the reasons noted previously including transience, mental health concerns on the part of the mother, refusal by the mother to participate in prenatal planning, as well as concerns about the violent nature of the relationship between the parents. K-M.G. was born healthy with no evidence of prenatal drug use by the mother.

Initial Reunification Efforts

[20] Initially, the Society worked with the mother to ascertain whether she would be in a position to care for her baby. She received hands-on parenting instructions, she attended parenting classes and she was referred to assisted housing for mothers with babies. The mother attended access regularly, and as she was co-operative, and as some progress was noted, access was expanded, again with positive results reported. Satisfied with the progress, the Society recommended to the court the return of the child to the mother. The child was returned to her care under a supervision order on March 7, 2011. This reunification plan was not without some problems, but for the first number of months, the child appeared to be doing well and the mother appeared to be trying to abide by the expectations of the Native Women's Transition House (NWTH).

Deterioration of Reunification Plan

[21] By September, 2011, cracks began to appear in this reunification plan. J.G. expressed anger and frustration with the program at NWTH by verbally lashing out at the staff, often in the presence of the child. As well, she began to refuse to comply with the rules and expectations of the NWTH, and on occasion, to be absent from the premises overnight without permission. Dissatisfied with the housing situation and the strict rules, she expressed a desire to relocate. The Society and the mother began to explore other assisted living locations.

[22] The situation at NWTH continued to deteriorate until November 20, 2011 when the mother was asked to vacate NWTH after an altercation between the mother and another resident occurred, with the mother identified as the aggressor in the incident. With the mother facing eviction and with no alternate acceptable plan for the care of K-M.G., the Society apprehended the child from the mother.

[23] After K-M.G. came back into care, the foster mother (the same foster mother who had cared for the child during her first time in care) expressed concerns relating to the child's development while in the care of the mother, including her delayed speech development and the fact that she did not seem to be able to stop eating. The child also had skin problems and asthma related breathing issues when she returned to care.

Parental Plans and Parenting Capacity Assessment

[24] At this point both parents were putting forth separate plans of care for K-M.G. The father was attending various parenting programs at Council Fire (an Aboriginal Centre located in Toronto) and he completed the PAR (Partner Abuse Response) program mandated by his probation order. The mother was continuing with counseling and was looking for other appropriate housing options for herself and the child. Both parents were regularly attending access with the child and access was generally reported to be positive with both parents.

[25] In May, 2012, the mother indicated that she was in support of a plan to place K-M.G. for adoption with openness as she wanted her daughter to have a permanent home during her childhood; she did not want her child to move from one temporary foster home to another as had been her experience as a child.

[26] Notwithstanding her change in position, the mother continued to attend regularly for access a number of times per week, and her access appeared to be positive for the child. However, on November 19, 2012, the mother surprised the Society by indicating that she wished to reduce her access to once per month so that she, and presumably the child, could get on with their lives.

[27] After the mother indicated that she no longer was planning to resume care of K-M.G., the Society began to focus on the plan of care put forward by the father. The Society noted that the father was regular in his access and was clearly very attached to the child. K-M.G. was observed in access to respond very positively to her father.

[28] The Society sought a section 54 parenting capacity assessment of the father. This parenting capacity assessment was conducted by Dr. Dan Fitzgerald in July, 2012. Dr. Fitzgerald reviewed the material forwarded to him by the parties and met with the father and observed the father interacting with the child. It was his assessment that:

The relationship between Mr. C and his daughter appears to be a mutually affectionate and genuine one. This would appear to provide a foundation for building their relationship, which would be a basis for going forward in increasing access and planning for Mr. C to assume the full-time care of his daughter. However, he is not personally at a place in his life where he has the personal resources and capabilities for doing so at this time. Mr. C would need to develop a far greater capacity to manage his own life in a responsible and well-adapted manner. He appears to neglect his own personal care and hygiene and has considerable health issues. It would be unreasonable to expect him to take on the responsibility of full-time care of a child before he has successfully demonstrated his capacity to meet his own substantial needs and attain a reasonable level of independence and healthy adaptive functioning. While he states that he is quite capable of caring for his child, he does not have the necessary community and familial supports in place to be able to do so. When talking about child-rearing practices, he tends to speak in platitudes and often references his own unhappy past. He will need to demonstrate a level of maturity and adaptive capacity in coping with his own personal issues before he is ready to assume the full-time care of his child. Mr. C needs to be involved in ongoing counseling to address his history of trauma, neglect and substance abuse as well as to receive continued support in developing his parenting skills. Mr. C also has diabetes and his health will need to be closely monitored. However, all things considered it seems reasonable for NCFST to move cautiously with a plan to increase access in order to determine if Mr. C is able to assume full-time care of K……

[29] Dr. Fitzgerald noted that his recommendation to cautiously move forward with a plan to place K-M.G. with her father was prefaced on the following conditions:

(a) father would have to demonstrate an abstinence from drug and alcohol use and testing for drug and alcohol use was recommended,

(b) father would need to demonstrate fiscal responsibility. Active involvement in school and employment needed to be demonstrated.

(c) father would need to secure day care and to work co-operatively with staff,

(d) father would need to demonstrate for an extended period a willingness and commitment to work collaboratively with community services,

(e) father would need to find health care services able to meet needs of his daughter,

(f) father would need to demonstrate a willingness to work with teachers, school administrators and substitute caregivers in order to ensure appropriate services for K-M.G.

(g) father would need to restrict the access to K-M.G. by her mother to locations outside his home where the access could be highly structured and closely supervised because of the potential for conflict between the two parents. Dr. Fitzgerald noted that the father had indicated his willingness to maintain ongoing contact with the mother and even mused about the possibility of the mother co-parenting with him, a prospect viewed by the doctor to be contra indicated and which would be very detrimental to the child given the history of conflict between these parents.

Expanded Access and Housing

[30] With the results of the parenting capacity assessment in hand, the Society began to cautiously expand access and to work with the father to ascertain whether the father would be able to successfully parent the child if appropriate supports were put in place.

[31] The father at this point had completed the PAR program, the NCFST Peaceful Warrior program (anger management), engaged in individual counseling with NCFST's Kathy Neegan, and had attended a number of parenting programs at Toronto Council Fire. He also was visiting the child on a regular, committed basis.

Given the time the child had already been in care, the Society wished to move the plan forward quickly, but in order to do so, the father needed to locate alternate accommodations. At the time, he was living with his mother and his brothers, and the Society was not prepared to permit access to occur at that home. The father had himself described his living situation as unsatisfactory. He had told the assessor that, "there is considerable hostility, anger and aggression in the home and he feels that it is an unhealthy environment for him". (Page 4 of parenting capacity assessment authored by Dr. Fitzgerald.) The Society, aware of the history of child welfare concerns relating to the father's biological family, began the process by assisting the father to locate and secure suitable, alternate housing.

[32] The father moved out of his mother's home to the NCFST's Men's Transition House. In October, 2012, on the advice of the Society, he moved to the City of Toronto Family Residence Shelter as this location had a "reintegration program" that would allow the Society to begin unsupervised day access to the child.

[33] Access to the father was increased to allow the father unsupervised day access. As no significant problems were identified by the shelter or the foster mother, the Society moved to increase access to the father to include overnight access. In December 2012, a motion for unsupervised overnight access was brought before Justice Cohen, the case management judge, who initially sanctioned such access, but on further reflection, pulled back the access to unsupervised day access. Given the history of the case, she ordered unsupervised day access to take place three days per week and referred the issue of overnight access to a motion where oral evidence could be adduced. Expanded access continued on a day basis until Justice Murray made an order permitting overnight access on March 4, 2013.

Concerns About Father's Plan

[34] While expanded access was taking place, the Society continued to work with the father on his plan to parent K-M.G. During that process, they began to identify areas of concern which ultimately resulted in the Society recommending against moving forward with a reintegration plan. The Society reached the decision not to support the father's plan for the following reasons:

1. Dependency on Professionals and Volunteers

The father appeared to be dependent upon the professionals and volunteers working with him to actually do the tasks which needed to be accomplished before he might assume care for K-M.G. Many incidents were pointed to in the evidence, and the following instances are but a representative sample:

(a) the father needed private housing. The father had been told to seek alternate housing in January, 2013 and in April, 2013, he had been advised that if he did not find housing soon he would be asked to vacate the Shelter. Little or no progress in finding private housing occurred until Mr. Budd, (an NCFST worker) was assigned to the case. It was Randy Budd who actually located the apartment because another client of his was living in the building and told him about the vacancy. It was Randy Budd who negotiated with the landlord and made sure that D.C. had the necessary documents to provide to the landlord. I am satisfied that without the intervention of Mr. Budd, the apartment would not have been secured.

(b) In order to obtain rent subsidies and child tax credits it was necessary for the father to file his income tax returns. For months the father was reminded of this requirement and referred to various helping agencies. This task was finally accomplished with the help of a volunteer. I am satisfied that this task would not have been accomplished without the strong urging of the Society and ultimate hands on assistance of a volunteer.

(c) The father was told to locate a doctor and a dentist ready to take on the child as a patient if the child were returned to his care. By June, 2013, the Society found that the father had made no progress in this regard and had not actually located a doctor or dentist for himself and relied upon a drop in clinic at Council Fire.

2. Dependency on Family for Structure

The father appeared dependent on his family to provide structure during his access periods. Although the father was told to seek out activities in Scarborough when he was at the shelter, and later to attend at a local community centre when he moved to his apartment in the west end of Toronto in order to develop an alternate support network, he made no effort to comply. The father would appear to agree to the suggestions made by the Society workers, but actually would continue to get on the bus and take the child downtown to spend time with his family, either at his grandmother's home, at his brother's home, or at his mother's home. (When his grandmother testified, she said that she saw the child two or three times per week at her home.) The father appeared to be making no progress in developing other social connections outside his family on which he could rely when caring for the child.

3. Breach of Court Order Regarding Mother's Contact

The father did not comply with the court order restricting access to the mother. The Society was informed by the mother in June, 2013 that since December, 2012 she was regularly seeing the child outside the supervised access regime whenever the child was in the care of the father, provided the parties were getting along. Photographs of the mother, father and child were produced which clearly showed the mother in the presence of the child at the father's house. The mother also showed the workers emails from the father making arrangements to meet for access. Given the concerns expressed by Dr. Fitzgerald about contact between the mother, father and child as potentially very detrimental to the child, the Society, who was of the same opinion, took this evidence of a breach very seriously. There was also evidence from the foster mother that the child told her after a number of access visits with the father that she had seen "mommy". The Society reached the conclusion that the father was breaching the order and viewed the breach as very concerning and serious. The father, even in the face of the photographic evidence, denied the breach, and the Society viewed this example of dishonesty in his dealings with the Society as bringing into question his ability to work honestly and collaboratively with professionals, without which any plan for reintegration would, in their opinion, have no chance for success.

[35] By July, 2013, the Society no longer felt that a reintegration plan with the father was feasible or that such a plan would meet the needs of the child for permanency and sought to have the matter determined by a court.

Trial and Recent Developments

[36] The father continued to press for the return of the child. The trial commenced in October, 2013 and was heard on various days available to counsel and the court until it concluded in late January, 2014. Over that period of time, the father continued to attend for parenting programs at Toronto Council Fire, both as a participant and as a volunteer, and would drop in and use the services available there including the food bank and the drop in medical clinic.

[37] In January 2014, the father received an offer of short term employment with Council Fire as a Child and Family Peer Support Outreach Worker on a 12-week employment basis at $18.00 per hour based on a 35 hour work week. He began work the first week of January.

[38] According to the evidence, the father was offered the employment because of his helpful participation in the parenting groups, and Council Fire wished to reach out to fathers and encourage more fathers to participate in parenting groups. A letter entitled "Offer for Short Term Employment" was filed at the trial, and the letter provides that the offer of employment is subject to the father obtaining a clear criminal reference check (CPIC) and a clear Vulnerable Sector Search report. The letter goes on to require the father attend at the police headquarters and request a copy for his records. When questioned about whether he had requested his record, he testified that he thought his employer would do that, but that if necessary, he was prepared to request his records. He testified that Sabrina Eddy, the woman at Council Fire who offered him the job, was aware of his record for domestic assault, however, when Melissa Lynn Abotossaway, - another worker at Council Fire testified - she said that she was unaware of the existence of the father's criminal record. It was unclear whether the offer of employment will be withdrawn once the existence of the father's criminal record relating to domestic violence is known.

[39] The father testified about his amended plan of care now that he had obtained employment. He testified that he planned to continue to work at Council Fire and, if K-M.G. were placed into his care, he would enroll the child at the First Nations School which was only a few blocks away from his place of employment. He planned to continue living in his apartment until the end of the lease and then look for an apartment closer to downtown. In the meantime, he would stay at his apartment and bring the child each day downtown by bus which took approximately 45 minutes each way. He said that his aunt would be prepared to help him with day care and he mentioned that he had many relatives in the downtown core near his place of employment who might also be available to provide day care. He felt that if K-M.G. were placed in his care, Randy Budd would be able to assist him in obtaining daycare. He said that if he were unable to obtain daycare, he would quit his job to care for K-M.G.

THE LAW — THE LEGISLATIVE FRAMEWORK

[40] K-M.G. is now 49 months old and has been in care for all but 8 months of her life. At this point, given the age of the child and the length she has been in care, either I must return the child to the father under a supervision order, or make an order for Crown wardship as no further period of society wardship is available to the court under section 70 of the Child and Family Services Act, R.S.O. 1990, c. C-11 as amended (the Act). This is clearly not a case where an extension for a six month society wardship order under section 70(4) of the Act would be in the child's best interests. A decision on the issue of permanency is long overdue.

[41] Section 70 reads as follows:

(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship;

[42] The test to be applied on a status review is one of best interests. Best interests of the child is to be determined by the court in taking into considerations the relevant factors set out in section 37(3) of the Act.

[43] The parties agree that in this case there are only two dispositional choices available to the court, either a supervision order placing the child with the father, or a Crown wardship order, with or without access.

[44] Should the court determine that a supervision order is the appropriate disposition in the child's best interests, the court may impose such reasonable terms and conditions relating to the child's care and supervision on the child's parent(s), the child and/or the Society.

[45] Should the court determine that a Crown wardship order is the appropriate disposition in the child's best interests, any order for access made in this matter would terminate automatically under section 59(2). The court is enjoined from making an order for access once a Crown wardship order has been made unless the court finds under section 59(2.1) that:

(a) the relationship between the person and the child is beneficial and meaningful to the child: and

(b) the ordered access will not impair the child's future opportunities for adoption.

[46] This section has generally been held to contain a rebuttable presumption against access whenever a child is made a Crown ward. In order to make an access order, the court must be satisfied on the evidence adduced that both prongs of the test have been satisfied. See Children's Aid Society of Toronto v. D.P.

DISCUSSION ON DISPOSITION

Crown Wardship vs Supervision Order

[47] There is no question that D.C. loves K-M.G. and that she loves her father. But the issue I must determine is not whether D.C. loves K-M.G. or whether K-M.G. loves her father, but rather whether returning the child to D.C. is in the child's best interest. In this case, I must decide whether the father, with or without the assistance of the Society, is capable of providing a permanent, stable home for K-M.G. that will meet her needs now and into the future.

[48] Unfortunately, for the following reasons, I have determined that he is not capable of doing so, and that a Crown wardship order is in the child's best interest under section 37(3) of the Act:

1. Lack of Readiness for Parental Responsibility

The father is not ready to take on such a significant responsibility as that of being the primary caregiver of K-M.G. It is clear from the facts I have found that he relies too heavily on the professionals and volunteers to perform the basic tasks he must shoulder in raising K-M.G. such as finding housing, and daycare. I find that he not only requires advice and counseling, he requires someone else to step up and actually do the task or the job will not get done.

2. Over-Reliance on Dysfunctional Family

Similarly, because the father is not ready to shoulder such a heavy responsibility, he is too reliant on the assistance of his family whom he has described as dysfunctional and not reliable. Because he is so needy, he gravitates to his family for support as he has no other community support, and he is either not prepared or is unable to find alternate supports within the community.

3. Risk of Parental Conflict

Because he is not ready to take on the care of K-M.G. alone, he has sought the assistance of the child's mother, even when he had been ordered not to do so. I accept that the mother loves the child, however, given the conflicted, often violent relationship between the mother and the father, there remains a very real possibility that the parents will fight with one another, either verbally or physically, when K-M.G. is present, and that would be very detrimental, possibly dangerous, to the child. (I recall that the mother admitted to breaking the father's nose in one altercation and the father has pled guilty to assaulting the mother on more than one occasion.) Left to his own devices, the father's need for assistance would no doubt result in the father seeking out the mother for babysitting, advice, and money, as I find he has done in the past. As he said to Dr. Fitzgerald, he might like to explore a co-parenting arrangement with the mother in the future. From the evidence I have heard, I think his comments to the assessor are more prophetic that hypothetical.

4. Lack of Trust and Collaboration with Society

The father would need a lot of assistance from the Society if there were to be any chance of his successfully parenting K-M.G. However, given the father's obvious distrust of the Society and his tendency to lie to the Society about important matters such as his contact with the mother, I see no way that the father's need for support may be addressed by a therapeutic alliance between him and the Society. If the Society cannot trust the father, and the father does not trust the Society, even assuming the Society accepted its legal obligation to comply with my judgment, I am not satisfied there is a realistic basis to expect that the parties will be able to work collaboratively.

Crown Wardship With or Without Access

[49] All the parties including the Children's Lawyer are in agreement that if I make K-M.G. a Crown ward, I should make an access order between the parents and the child because the relationship between the parents and the child is beneficial and meaningful to the child, and an access order will not impair the child's future opportunities for adoption.

[50] If I make K-M.G. a Crown ward, the Society and the Children's Lawyer ask that I make an order for supervised access once per month in favour of both the mother and the father to the child, as well as a mirror order for supervised access in favour of the child to both the mother and the father in order to preserve their individual rights as access holders to receive notice and apply for an openness order under section 145.1.2 of the Act in the event that the child is placed for adoption.

First Prong – Is the Relationship Beneficial and Meaningful to the Child

[51] I am satisfied on the evidence I have heard that K-M.G. has a secure attachment to both her parents and that she benefits from and enjoys her time with both her mother and her father. Accordingly, I am satisfied on the uncontested evidence before me that the first prong of the test set out in section 59(2.1)(a) has been satisfied.

Second Prong – Will Ordered Access Impair the Child's Future Opportunities for Adoption

[52] From all reports, K-M.G. is a lovely four-year-old girl, who may have some temper issues and some language delays, but is generally a happy child. She is meeting her milestones and is securely attached to her foster mother. It is the opinion of the adoption worker, Jay Lomax, that K-M.G. is very adoptable.

[53] According to the Society's plan of care, it is their intention to place the child for adoption as soon as practicable with a family who would be prepared to entertain an openness order. The Society submits that the relationship between the parents and this child is important to the child, and that to completely sever this biological connection would not be in her best interests. The Children's Lawyer agrees with this position.

[54] Given the fact that four year old K-M.G. has been in care for all but eight months of her life, and that she will not be returned to her biological family, a permanent home must be found for her as soon as possible. For young children, an adoptive home, if available, has generally been found to be the most reliable way of securing a permanent home.

[55] The parties urge me to make an access order with a view to adoption with openness. However, notwithstanding the connection this child has with her biological family, before I make an access order in favour of the parents, I must be satisfied under section 59(2.1)(b) that an access order will not impair this child's future opportunities for adoption.

The 2011 Amendments and Openness Orders

[56] Prior to the amendments to the Act in 2011, the answer was simple. If an access order was made, a child could not be placed for adoption until that access order was terminated. Accordingly, an access order, by operation of statute, would always impair a child's future opportunities for adoption.

[57] Since the 2011 amendments, the answer is not so simple. Now, the existence of an access order does not preclude the placing a child for adoption. A Society may place a crown ward with access for adoption, and once that child is placed for adoption, the access order is terminated under section 143 of the Act, subject to notice and a possible application for an openness order being commenced by either the subject of the access order or by the person or persons (including the child depending on the wording of the order) who has/have the benefit of the access order. The operative sections relating to openness applications are section 141.1.1, section 145.1.1 and section 145.1.2 of the Act.

[58] Although an access order no longer precludes the placement of a child for adoption, courts have still held that an access order may impair a child's future opportunities for adoption because an access order opens the door to a future openness order. A number of courts have wrestled with how the possibility of an openness order (made possible because of the existence of an access order) might affect a child's future opportunities for adoption.

[59] Recently I had the opportunity of reviewing the jurisprudence dealing with the issue of the interaction of openness orders with the proscription against impairment of opportunities for adoption. The case of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 at paragraph 71 summarizes some of the reasons claims for access have been rejected, or might be rejected, in the future. Paragraph 71 reads as follows:

Recent cases have considered potential reasons why courts might reject claims for access on the second prong of the test. See Catholic Children's Aid Society of Toronto, Applicant, and M.M. Respondent, and J.N., Respondent [2012] O.J. No. 3240 and Catholic Children's Aid Society of Hamilton v. L.S., supra. The following is a list of reasons why claims for access have been rejected, or might be rejected, in the future. This list is in no way exhaustive.

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behaviour. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption.

[60] Whether the possibility of a future openness application being brought would deter potential applicants for adoption was discussed in Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 by Murray, J in paragraph 234-236, when she wrote:

I can only speculate as to whether the prospect of an openness application and hearing would be a deterrent to prospective adoptive parents, since I have no evidence about the pool of prospective adoptive parents for L.M.…..

For the court to evaluate these arguments, evidence about the characteristics of the pool of prospective adoptive parents is required. It is the Society, and not M.M. and J.N., who has access to this data. The Society chose not to present evidence on this point.

M.M. and J.N. bear the onus of satisfying me that an order for access will not impair L.M.'s opportunities for adoption. They have presented all the evidence they could reasonably be expected to marshal on this point. The Society has presented no evidence on the beliefs and attitudes of its pool of potential adoptive parents as regards possible openness arrangements for L.M., and I decline to make a finding on this point without evidence.

EVIDENCE CALLED ON THE ISSUE OF WHETHER AN ACCESS ORDER MIGHT IMPAIR K-M.G'S FUTURE OPPORTUNITIES FOR ADOPTION

[61] In this case, evidence was called in an attempt to address this issue and to provide some expert evidence on the expectations of potential adoptive parents on the issue of openness.

Expert Evidence: Michael Blugerman

[62] The Children's Lawyer called Michael Blugerman. Mr. Blugerman is the executive director of the Children's Resource and Consultation Centre of Ontario, a private adoption agency licenced by the Ontario Ministry of Children and Youth Services and has a private practice in psychotherapy, where he counsels parents in high conflict custody and access cases. As well, he is a person approved of by the Ministry to conduct home studies of adoption applicants and has been involved with private adoptions since 1980. Given his experience and training, the Children's Lawyer sought to have him qualified as an expert in adoption and permanency planning, and after a voir dire, and with the consent of all the parties, he was so qualified.

[63] He testified that since founding his private adoption agency in 1980, he has been involved in all aspects of adoption work, from conducting home studies, to working with birth parents, to placing children for adoption, to providing post-placement adoption supervision, and to preparing documents for court finalization of adoptions.

[64] He noted that openness has become increasingly a part of his work as a private adoption practitioner over the last twenty years; he testified that he has worked on this issue with both adoptive parents and birth parents.

[65] Mr. Blugerman testified that when biological parents approach a private adoption agency it is with a view to renouncing their parental rights because they have made the decision that they are unable to parent their child.

[66] Today, some form of post adoption contact by biological parent in the private adoption sphere is almost a given. (To my way of thinking this can hardly be surprising as the birth parent often is involved in selecting the adoptive parent, and if the birth parent wants some form of contact after adoption, a refusal to allow any form of openness post adoption would in all likelihood, be a deal breaker.)

[67] Mr. Blugerman testified that he often drafts openness agreements and has a fairly standard agreement which provides for quarterly meetings or pictures for the first year, and maybe the first five years, because it is impossible to plan too far into the future. After about five years, he testified that the agreement should be renegotiated, and that he has been involved in such renegotiations. He noted that the "chemistry" between the adoptive parents and the biological parents will develop over time and often the way in which the "openness" is manifested depends on the age of the child and the needs of the birth parent and the adoptive parent. He said that flexibility is required in such agreements.

[68] Disagreements do occur, and he told the court that he has been hired, on a number of occasions, to become involved as a mediator, when one of the parties to the agreement feels that the other party is not keeping up their side of the contract.

[69] Mr. Blugerman acknowledged that he has never worked in the public adoption sphere but has been asked to consult on the issue of openness with his fellow professionals who work in the public adoption arena.

[70] Mr. Blugerman testified about the differences he sees between the private adoption experience and the public adoption system. In his opinion, perhaps the biggest difference between the systems relates to the fact that in the public area parental rights are often taken away rather than voluntarily surrendered. This difference, according to Mr. Blugerman, can be a very significant fact when a court is considering openness and the form openness should take. How a biological parent actually processes a decision which has taken away his parental rights against his will is very important. He testified that if the biological parent continued to actively oppose an adoption placement, contact between the child and the biological parent might be the biggest threat to achieving permanency for that child.

[71] Mr. Blugerman felt that a biological parent should be permitted a time to grieve and perhaps receive counselling to see whether that parent might be able to accept that he or she will not be the person who raises the child to adulthood but that he/she might still be able to play a positive role in the child's life. In his opinion, many cases could be transformed into constructive partnerships, presumably with time and with counseling.

[72] When asked about face to face contact and factors that would militate against the making of such an order, he highlighted the following "hassle factors":

(a) If the biological parent was unable to support the adoption, or was absolutely against the adoption there would be a real likelihood that that parent would undermine the adoptive home,

(b) If the biological parent presents as a wreck resulting in the child feeling that he or she must look after the biological parent,

(c) If the biological parent is an alcoholic and appears at meeting drunk

(d) If the biological parent is violent, or has a serious criminal record causing the adoptive parent to fear for his or her safety,

(e) If the biological parent is unreliable about attending face to face meetings and simply does not show up disappointing the child and inconveniencing the adoptive parent.

[73] Mr. Blugerman noted that in England virtually every biological parent whose child has been removed because of protection concerns and then placed for adoption has what is referred to as a letter box order whereby that parent once or twice a year is advised of the progress of the child. This type of order would include parents who have found to pose a danger to the child.

Survey of Adoption Professionals

[74] As to whether K-M.G.'s opportunities for adoption would be impaired if an access order were made opening the way for a possible openness order, Mr. Blugerman testified that at the request of the Children's Lawyer he posted the following message on November 4, 2013 on a list serve of adoption professionals in Ontario (85-90 adoption practitioners on the service):

Does anyone have a family for a 3 ½ year old little girl. She is blonde; blue eyed, attends a Montessori school and is meeting her developmental milestones. She has some behavioural issues consistent with ADHD and there is some unconfirmed and non-evident question of some alcohol use by her mother. She should be considered 'low special needs'. Birth mother supports an adoption plan. Birth father would like to raise the child but might agree to an adoption plan with some contact/openness e.g. face to face a couple of times a year, pictures and letters: some Native history, described as attractive.

[75] When Mr. Blugerman testified on November 8, 2013 he indicated that he had received 13 positive responses within the first day. He noted that on his caseload he has a number of families willing to consider openness. He told the court that a number of enthusiastic practitioners forwarded home studies and further inquiries had been received since. He referred to the fact that there was a lot of interest in this little girl.

[76] He testified that many couples seeking to adopt are very anxious to find a child. Very few "perfect" newborns are released for adoption, and the supply of children from foreign countries are "drying up" and those that have been adopted from foreign countries often bring their own problems. People interested in adoption who previously looked to the private or foreign adoption system are now looking to the public adoption system for children. He testified,

"So, I didn't say, Your Honour, in response to your question about the difference between public and private but there is a history in England that's longer of direct contact with child welfare, child protection agency cases and they use the phrase letter box contact …—openness in each case varies and in some,… where parents have been dangerous to a kid or the parents just cannot get their head around endorsing this permanency plan that a picture, letter kind of letter box they call it contact is, is the formula…for sustained contact over time. So there are a lot more parents now who have the awareness that if they… are going to parent a child through the system….that child is going to have a degree of openness or contact in the program and… he will have some medical, physical, emotional challenges that's sort of like hello let's start talking. That's the new deal".

[transcript Blugerman, page 32 lines 11-29]

[77] It was Mr. Blugerman's evidence that there are a number of families who would be interested in K-M.G. if I were to make an access order with a view to adoption with openness.

Adoption Resource Exchange

[78] Mr. Jay Lomax, the adoption worker at the agency also attempted to ascertain whether a request for an openness order would discourage potential applicants and impair this child's future chance for adoption. In furtherance of this goal, he testified that he attended the Adoption Resource Exchange held at the Metro Toronto Convention Centre on November 17, 2013. He told the court that K-M.G.'s profile was presented to prospective adopting families and in that profile was the provision that openness would have to be considered between K-M.G. and her biological parents. Of the 100 people who stopped by to read the child's profile, 72 filled out the "Child Response" forms. The candidates asked many questions including questions about the child's health, her exposure prenatally to drugs or alcohol, any mental health issues relating to the mother, any special needs of the child (language delay noted), any band involvement, and how long would it take for the workers to review the profiles.

[79] On the issue of openness, most people asked what that openness might look like and would it be visits once per month, once per year, or just cards and photos. Mr. Lomax told the court that most candidates were open to some form of openness. When he explored this issue further, he noted that some said that they would be willing to do visits, send pictures or once in a while phone calls. No one said that they were not interested because there was the possibility of an openness order. Eight of the families indicated that they shared some native heritage with the child.

[80] This apparent readiness by potential adoptive parents to entertain openness did raise questions in my mind and I wondered whether their urgent desire to find an adoptive child was making them answer the question of whether they would entertain openness because they did not wish to be excluded from the applicants who would be considered a "match" for the child. On this issue as to whether this ever happens, Michael Blugerman had the following to say in cross examination,

Q: But do you find that those families may tend to be overly optimistic..

A: Yeah.

Q: in terms of their ability to participate…

A: Yes.

Q: ….in openness because that's a picture of a beautiful little girl in front of them?

A: For sure. And it's part of the professional responsibility to assess, … are these people over reaching or over promising… because I've had those scenarios where people have agreed to do a lot more then they're capable of…? So from a professional point of view…, I would say it's my responsibility to know the family and know what their capacity is, … like when are they likely to promise something they can't maintain and, and likewise with the birth parent, are they asking something that's good for them and good for the kid or is it reflective of their resentment or their loss or whatever. It's a professional kind of conversation.

Q: It's quite a complex process to.

A: Yes.

CONTACT VS ACCESS

[81] The order that I am being asked to make is an access order after a Crown wardship order. It is well settled that an access order is qualitatively different after a crown wardship order from an access order before Crown wardship. In this regard, I agree with the comments made by Clay, J. in para 90 of his decision, Children's Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 when he wrote:

The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[82] Similarly, I accept the proposition that an access order post Crown wardship is qualitatively different than a contact order post adoption. Section 136 of the Act defines "Openness order" as follows:

"openness order" means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child's extended family or community, or

(c) (applicable to Indian or native children as defined by the Act)

[83] Openness must not be confused with access.

[84] Openness allows for a form of contact by the biological parent or member of the biological family (or other person who enjoyed a significant emotional tie with the child) post adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the Crown wardship order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post adoption by way of an openness order. See Re S.M., 2009 ONCJ 317, a decision of Katarynych, J.

[85] As to the difference between access and contact, Mr. Blugerman noted that in his private adoption practice he preferred to use the word "contact". On line 30 of page 20 of his transcript referred to above, he testified,

"In, my mind I like the word contact …, from the point of view that's it's a child focus best interest. Access has more parental implication or a right in my mind then contact."

[86] Although I am being asked to make an order for access post Crown wardship with a view to adoption and an openness order, I am cognizant that there is only so far I can go in contemplating the form an openness order might take. Unless the adoption or openness application is placed before me, I may not be the judge deciding whether an openness order will be granted and what form such an order should take. I am aware that before any openness order is granted a court shall consider "the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order." Section 145.1.2(7). In this case, the identity of the adoptive parent has yet to be determined.

[87] What I do know is that the Society intends to offer this child to potential adoptive parents as a child where "some openness would have to be considered". In this case, both biological parents testified that they would respect the role of an adoptive parent as they had respected the role of the foster mother and would be prepared to place the interests of their daughter before their own. (However, some counselling may be necessary to deal with the biological parents' feelings of loss, especially the feelings of the father, given my decision not to return the child). The Society urged me to accept the parents' evidence on this point and order some supervised access after the Crown wardship order is granted.

[88] I turn then to the question of the operation of section 59(2)(b), the effect of such an order on the willingness of potential adoptive parents to offer their home to this child and the stability of any future adoptive placement in the event the access order gives rise to an openness order. I accept the evidence of Mr. Blugerman that many potential adoptive parents have been known to over reach or over promise about their ability to facilitate contact with the biological parents because they so want to be considered as potential parents for a child. This may prove to be the case here and a court considering openness would have to be alive to this possibility.

[89] The decision as to the form openness order, if granted, may take is a decision for the future and possibly for another judge. I agree with the comments of Katarynych, J. in her decision Re S.M. supra that the form openness should take is a very important one and is one that should be "road tested". The importance of a stable adoptive home cannot be overstated. In para. 17 of her decision, she noted, "an openness order should not leave a child "straddling his "old" and the "new" life in a manner that disinclines him to root himself in his adoptive life."

[90] In her decision Re: S.M. supra, Justice Katarynych made an openness order, on a temporary basis, which she reviewed after a number of months to see how it was working. She noted that when children are placed for adoption, a final order for adoption is not made until the placement is assessed and a recommendation for completion of the adoption is made to a court. Adoptions are not rushed because the order is very important to the child and an adoption order once made is final. Likewise, the form of an openness order is very important because it has the potential to greatly benefit the child, or, if ill considered, may pose the biggest threat to achieving permanency for the child.

CONCLUSION

[91] I am satisfied that the relationship between the biological parents and the child is beneficial and meaningful to the child: and I am satisfied that the access that I order will not impair this child's future opportunities for adoption.

[92] I am prepared to order supervised, face to face access, three times per year, supervised by the Society, K-M.G. to her parents and the parents to K-M.G. In my opinion, this limited form of supervised access will not deter potential adoptive parents from coming forward, and will meet the needs of a child soon to be adopted so that she may maintain her relationship with her biological roots.

[93] Because I have found there are many factors specific to the making of openness orders which would require evidence at a hearing before a judge on an openness application, I do not assume necessarily that this access order, which allows for face to face contact, would automatically be transformed into an openness order. That will depend on the views of the potential adoptive parents, and the willingness of the biological parents to support the child in her new adoptive home, hopefully after the contact order has been "road tested" and found to be workable in this child's best interests.

Released: March 5, 2014

Signed: Justice Penny J. Jones