WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re 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.

(9) Prohibition re identifying person charged — 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.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Court of Appeal for Ontario

Date: 2019-06-05

Docket: C66186

Judges: Sharpe, Trotter and Harvison Young JJ.A.

Parties

Between

A.R. (Applicant/Appellant)

and

M.B. and E.B. (Respondents)

Counsel

Michael J. Cupello, for the appellant

Danielle Szandtner and Paul Brunetta, for the respondents

Hearing and Lower Court

Heard: May 28, 2019

On appeal from: The judgment of Justice Terrence J. Platana of the Superior Court of Justice, dated October 29, 2018, with reasons reported at 2018 ONSC 6441.

Reasons for Decision

Background

[1] The appellant brought an application under s. 21(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) seeking access to her biological child, who had been adopted by the appellant's mother (and her husband) in 2015. The application was dismissed on the basis that the appellant lacked standing. The appellant appeals from that decision.

[2] The child in question, A.B., was born on September 21, 2010. In March 2012, the appellant experienced mental health difficulties. She was hospitalized for a month, during which time the appellant's mother and her husband (the respondents in these proceedings) took care of A.B. Although social services became involved, the respondents continued to care for A.B, even after she was made a Crown ward on July 3, 2013. During this time, the appellant had some access to A.B.

[3] On February 19, 2015, the respondents adopted A.B. The appellant consented to the adoption. At the outset of the adoption proceedings, the appellant was served with a Notice of Termination of Access. She sought no openness agreement with the respondents.

[4] Shortly after the adoption was completed, the appellant moved to another city, 350 kilometers away. The respondents permitted the appellant to visit A.B. once a month for two hours. The appellant was never permitted to be alone with A.B. According to the respondents, the appellant did not appear very interested in visiting with A.B. There was other contact between the appellant and A.B. by phone and by Facetime, but the frequency of that communication is unclear.

[5] The appellant commenced an application for access under the CLRA in July of 2017. The appellant has been denied access to A.B. ever since.

Standing Issue

[6] At a case management conference, the appellant's standing to bring an application under s. 21 of the CLRA was called into question. The Trial Management Judge directed a determination of the following issue: Does the Applicant have standing to apply for access to her natural child, who was adopted, in light of the provisions of s. 160 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA)?

[7] Section 160(1) of the CFSA, which has been replaced by s. 219 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, provides that, when an adoption is made under Part VIII of the Act, access by the birth parents is terminated.

[8] The applicant applied for access under s. 21(1) of the CLRA, which provides:

s. 21(1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. [Emphasis added.]

The appellant contends that she falls within the meaning of "any other person."

Procedural Issue

[9] As a matter of procedure, the appellant contends that the application judge somehow pre-determined certain substantive issues (discussed below) by deciding them on a preliminary motion. We are not persuaded by this argument. There is no indication in the record that the appellant objected to this process. Nothing was brought to our attention to support the view that the application judge was not entitled to proceed on this basis. Standing is an issue well-suited to this type of preliminary determination.

Legal Framework

[10] The application proceeded on the shared understanding that access in these circumstances is exceptional and that an applicant must fall within a recognized exception (discussed below) and present a prima facie case that permitting the access application to proceed on the merits would be in the best interests of the child.

[11] The appellant argued that she fit within two exceptions to the rule that prevents a biological parent from having access to an adopted child: (1) the biological parent establishes a relationship with the child after the adoption; and (2) assurances were given by the adoptive parents that there would be continued contact. She also argued that access would be in the best interests of A.B.

Application Judge's Findings

[12] The application judge found that the appellant had failed to meet the evidentiary threshold of demonstrating that she fit within either of the exceptions, and that permitting the access application to proceed on the merits was not in the best interests of A.B. As a result, he found that the appellant lacked standing under the CLRA.

Court of Appeal Analysis

[13] We are not persuaded that the application judge erred in his application of the law to the facts as presented on the application.

First Exception: Post-Adoption Relationship

[14] On the first exception, the application judge found, at para. 32, that "I am of the view that the facts do not establish a relationship to meet the threshold test, nor do they establish an exceptional circumstance. The reality in this case is that the child was adopted prior to the age of three. She is now eight years of age and has had minimal contact with the birth mother." Even though A.B. was not adopted until she was 4 ½ years old, she had already been in the care of the respondents for some time. There was evidence to support the application judge's finding that the relationship between A.B. and the appellant was, at best, "minimal".

Second Exception: Assurances of Continued Contact

[15] Moreover, the application judge found that there was no evidence that the respondents provided assurances to the appellant that she would have access to A.B on a go-forward basis. The appellant's mother said that she let the appellant into her home at times based on their mother-daughter relationship. In cross-examination, the appellant acknowledged that, prior to consenting to the adoption, she reached no understanding with her mother as to what access, if any, she would have post-adoption. The evidence supported the application judge's conclusion that there were no assurances of access or contact.

Best Interests of the Child

[16] Most importantly, the application judge found that there was no evidence to establish that access would be in the best interests of A.B. to have the application proceed on the merits. He acknowledged that the appellant provided evidence to prove that she had taken steps to improve her own mental health and well-being. However, the evidence did not address the best interests of A.B. As the application judge held at para. 35: "I find no such evidence in this case. The only evidence I have before me is that the court determined that it was in the best interests of the child to make an adoption order." In reaching this conclusion, he recognized that the integrity and health of the adoptive family must take precedence over the interest of a birth parent seeking to maintain contact with the child (para. 37).

Conclusion

[17] The application judge made no error in terminating the application based on lack of standing, particularly in the absence of any evidence to suggest that permitting access would be in the best interests of A.B.

[18] Accordingly, the appeal is dismissed with costs to the respondents in the amount of $7,500, inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"Gary Trotter J.A."

"A. Harvison Young J.A."