WARNING

The court hearing this matter directs that the following notice should 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 45(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.

(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.

(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 File and Parties

Court File No.: 531/02 Date: 2012-08-03 Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant,

— And —

D.D. and S.P. Respondents.

Reasons for Judgment

Before the Honourable Mr. Justice Barry M. Tobin

Heard on: April 12, 13, June 1 and 12, 2012

Released on: August 3, 2012

Counsel:

• Frank Philcox for the applicant Society
• Jennifer Suzor for the respondent, D.D.
• Gerri Wong for the Office of the Children's Lawyer, legal representative for the child

TOBIN J.:

1: INTRODUCTION

[1] The issue in this case is whether the child, who is a Crown ward, should continue to have access with her mother, D.D.

[2] The respondents are the parents of L.L.D. ("L."), born […], 2004.

[3] L. was made a ward of the Crown and committed to the care of the Windsor-Essex Children's Aid Society ("Society") on July 28, 2009, by Order of Phillips J. The child was expected to remain in the care of grandparents following the Crown wardship order being made. Ms. D. was granted access to the child under that order. Access between the child and the respondent, S.P., was prohibited.

[4] On June 18, 2010 Ms. D. brought a Status Review Application seeking an order placing the child in her custody. The case was started by her as the child was removed from the care of her grandparents and placed in foster care.

[5] The Society filed an Answer requesting that Ms. D.'s claim be dismissed and in its Claim by Respondent sought an order terminating Ms. D.'s access to the child. The Children's Lawyer supported the Society.

[6] Mr. P. was served with the Status Review Application, however did not respond and is in default. He did not attend the hearing.

[7] Ms. D. was not present when the hearing started. At that time her counsel requested that the hearing be adjourned. This request was not granted. No evidence was called in support of Ms. D.'s claim, consequently, it was dismissed. The Society then began to present its case.

[8] Ms. D. did attend at Court on the afternoon of the first day of the hearing. She did not renew her request to adjourn the trial nor did she ask that the dismissal of her case be set aside and that she be allowed to present her case to have the child placed in her custody.

[9] The Society proceeded with its case seeking to terminate Ms. D.'s access to the child. Ms. D. did participate in the hearing of the Society's request to terminate her access.

2: REASONS FOR JUDGMENT OF PHILLIPS J. DATED JULY 28, 2009

[10] On July 28, 2009, Phillips J. released very lengthy Reasons for Judgment following a 13-day hearing of the Society's Status Review Application which took place during the months of May, June and July, 2009. The court found that the child remained in need of protection.

[11] The Society's request that the child be placed in the custody of her paternal grandparents L.B. and J.B. under s. 57.1 of the Child and Family Services Act, was rejected by the court. Instead, the court made an Order for Crown wardship with access to Ms. D.

[12] When Phillips J. made the Order it was expected that the child would continue to be placed in the home of Mr. and Mrs. B. This is where she had been residing for a considerable period of time.

[13] The Court stated the following at paragraphs 379 to and including 382 with respect to access:

In addition to the Crown Wardship order there shall be an order related to access for the benefit of the child to her mother.

Access (it should be repeated and underscored) in favour of the mother is not meant for her benefit but in fact for the benefit of the child, L.

The child is entitled to know who her mother is and to have contact with her mother. Within reason (and within the access times permitted to the mother) that entitlement to know should extend to the child having time with her maternal grandmother and aunts (those who testified). It is important for this child to have a sense of her "family" as well as her racial heritage and background.

The access (in order to serve the best interests of the child), shall be subject to terms and conditions.

[14] Under the Order, Ms. D. was granted access to the child once monthly on a Saturday from 10:00 a.m. until 4:00 p.m. supervised by Society personnel. Ms. D. was obliged to provide confirmation to the Society of her intention to exercise access by phoning the assigned Society worker by 10:00 a.m. three days before the scheduled access. The Order further provided that if Ms. D. missed two consecutive visits, without good excuse, access was to be reduced to three times per year, eight hours per visit wholly supervised at Society premises. The notice of intention to exercise access provision was to continue in force subsequent to the reduction in access time.

[15] The Society was to assume all transportation costs related to access.

[16] Ms. D. was entitled to communicate with the child by letter.

3: EVENTS SUBSEQUENT TO MAKING OF CROWN WARDSHIP ORDER

3.1: The child is removed from her grandparents' home

[17] The child remained in the care of Mr. and Mrs. B. for approximately two or three months after the Crown wardship order was made. The child was removed from the care of Mr. and Mrs. B. because they did not meet Provincial standards for foster care placement. These standards did not appear to have been put in issue before Phillips J.

[18] Shortly after being taken from the care of Mr. and Mrs. B., the child was placed in the foster home where she has remained ever since.

3.2: Inconsistent access exercised by the mother

[19] From September 2009 onward, Ms. D. missed nine visits because she failed to give notice to the Society in accordance with Phillips J.'s Order. She missed two visits due to illness.

[20] Ms. D. missed two visits in a row in November and December 2010. Even though she missed these two visits, the Society did not act to reduce her access in accordance with the court order.

[21] Ms. D. missed another two visits in a row in April and May 2011. This time, as a consequence of missing these two visits, the Society acted in accordance with the Order of Phillips J. and advised Ms. D. that her access was being reduced to three times per year. The access dates scheduled for the balance of 2011 were set by the Society. Ms. D. was advised of the dates and was reminded to confirm her attendance for these visits. The visits are now scheduled to take place three times a year.

[22] Ms. D. last had access with the child in July 2011.

[23] Ms. D. has not made inquiries of the Society regarding how the child was doing in school or at the foster home. She sent Christmas gifts but not birthday gifts for the child.

3.3: The child is placed in foster care

[24] The current child services worker at the Family and Children's Services of St. Thomas and Elgin, the Children's Aid Society with responsibility for the child, is Marilyn Provenzano. This agency is involved as the child resides with a foster family in Elgin County. Ms. Provenzano meets with the child and the foster family every four to six weeks at the foster home.

[25] The Society's Plan of Care filed in this proceeding states that the child's foster parents expressed a desire to adopt her and that they have been approved by the Family and Children's Services of St. Thomas in Elgin to do so.

[26] The foster parents are K.N. and J.1N. They reside with their son, J.2, and a seven month old child, J.3, who they are fostering to adopt.

3.4: The child's current circumstances

[27] L. has resided with the N. family continuously since November 30, 2009. She was placed there shortly after being removed from the care of her paternal grandparents.

[28] The paternal grandparents care for L.'s sibling, Destiny. The child continues to see her paternal grandparents once or twice a month during daytime play dates. The play dates give the siblings an opportunity to spend time together.

[29] L. attends Grade 2 at St. Anne's School. This is where she has attended since Sr. Kindergarten. She is described by Ms. N. as motivated.

[30] L. has some difficulties with socialization. She is immature for her age and seems to interact more comfortably with children who are three and four years of age than she does with children of her own age. Ms. N. has observed L. to be anxious in social situations with her peers.

[31] Ms. N. is employed by the Thames Valley District School Board as an Educational Assistant. She works at an elementary school with developmentally challenged students. She has been married to her husband for fourteen years. He is a safety management consultant who works on a full time basis out of their home. It is their desire to adopt L.

[32] Ms. N. describes L. as being integrated into her family. She described her as fitting in and being part of their family. Her son J.2 acts like a big brother to L. He is very protective of her.

[33] Ms. N. has observed L. to be very comfortable within her family.

[34] Ms. N. recognizes that Mr. and Mrs. B., L.'s paternal grandparents, are her family. She has a positive relationship with them and is receptive to L. having ongoing contact with them as well as with her sister Destiny.

[35] Ms. N. and the Society are attending to L.'s needs including having her seen by a speech therapist at school and by an orthodontist to determine if she needs treatment to help her speech. Testing has not yet taken place with respect to her anxiety and executive functioning. Ms. N. describes L. as having difficulty understanding simple concepts and instructions with more than two steps. She anticipates that the testing will take place before L. begins Grade 4.

[36] Ms. Provenzano has observed that the N. home is a welcoming one as well as child centered. She has observed that L. is very comfortable in that home. She easily asks for her needs to be met. She plays well with young J.2N. She is involved in extra-curricular activities and summertime camps. L. appears to be an accepted member of the N. family.

[37] When L. is to have access with her mother Mr. and Ms. N. drive her to Windsor. L. was most disappointed when the September, 2011 access did not take place. Her birthday was in August and she was expecting Ms. D. to celebrate her birthday with her.

[38] Should the adoption take place Ms. N. testified that she would be willing to receive emails once a month through the Society from Ms. D., send pictures twice a year as well as L.'s final report card each year to Ms. D. through the Society.

4: ATTACHMENT ASSESSMENT

[39] A parenting capacity assessment order was made by Phillips J. on January 20, 2011. It provided that Dr. Catharine Lee was to conduct an assessment of the attachment between L. and her mother.

[40] Dr. Lee is a Clinical Psychologist who was awarded her doctorate from the University of Windsor in clinical psychology in 2005. She has a private practice in Windsor and is adjunct faculty as a Sessional Instructor at the University of Windsor, Department of Psychology. One of the courses taught by her at the graduate level was child assessment. In her private practice she specializes in working with children.

[41] A voir dire as to her expertise entitling her to give opinion evidence was not required by counsel, nor was her attendance to be cross-examined on the contents of her report. She was qualified as an expert capable of providing opinion evidence with respect to attachment. Her report of March 4, 2011 was admitted as her evidence on behalf of the Society, as was the transcript of her questioning undertaken on September 7, 2011.

[42] Dr. Lee's report disclosed that she conducted an assessment to determine the nature of the emotional attachment relationship between L. and Ms. D. L. was interviewed by Dr. Lee for an hour and a half in her office. Ms. N. was also interviewed for one half hour on the same day. Dr. Lee also observed an access visit that took place on February 19, 2011 for one and a half hours at the office of the Society. In attendance at that visit were L., Ms. D. and Ms. D.'s mother. Dr. Lee also reviewed Society documents including those pertaining to previous access visits.

[43] Dr. Lee explained her assessment as follows:

The assessment of attachment considers the relationship between an adult and child and reflects a child's feelings toward his or her parent. When there is a secure attachment the child feels a sense of security and comfort in the presence of that parent and that feeling of security is greater than in the presence of other caregivers. The presence of a secure attachment is deduced from observations of behaviours when the parent and child are together and from the child's reports of thoughts and feelings when they are apart.

[44] At L.'s age it is expected that demonstrations of attachment behaviours occur when the child is in need of care, support or comfort. Dr. Lee stated in her report that:

The elements that contribute to secure attachment include: the emotional availability of the parent, consistency of the parents' behaviours and contingent responsiveness (i.e. the parent responds appropriately to a child's signal and cues).

[45] The facts upon which Dr. Lee based her conclusions were not challenged by Ms. D.

[46] Dr. Lee's conclusion was that:

... it appears that there is not a secure attachment between L. and her biological mother. There was no evidence that L. felt a sense of security and comfort in D.'s presence. In addition, L. reported feeling greatest security in the presence of her foster mother, and spoke about relying on her foster mother when L. was ill or afraid (e.g., when she had a bad dream). Further, a review of observation notes from previous access visits indicated that access visits were inconsistent, and D. often failed to demonstrate contingent responsiveness (ie. D. did not respond appropriately to L.'s questions and signals). The nature of the emotional relationship between L. and D. would best be characterized as disorganized/disoriented pattern of insecure attachment. This is likely due to a history of inconsistency in access visits and lack of contingent responsiveness during the access visits.

[47] I accept Dr. Lee's conclusion. They were not seriously challenged, nor was her methodology called into question.

5: MS. D. AND HER CIRCUMSTANCES

[48] Ms. D. brought the application seeking the return of L. to her care after the child had been moved from the home of the paternal grandparents.

[49] Based on the access visits that she did have, Ms. D. described L. as cheery. L. was happy to see her and was most talkative. Ms. D. was concerned when L. would talk about the foster parents.

[50] She readily admitted missing two or three visits but she did not agree that she missed the eleven visits documented by the Society. I accept the missed visits were eleven as documented by the Society. She missed access visits for various reasons including, insomnia and anxiety attacks.

[51] The Society's records disclose that Ms. D. has not seen L. since July 2011.

[52] Ms. D. was of the view she had much to give her daughter. Ms. D. believed the bond between L. and her should be strong. She should be there mentally, physically and emotionally for L. L. should come to her with problems when she sees her.

[53] It is Ms. D.'s observation based on the access visits that took place that L. is mature for her age and is an intelligent young girl.

[54] Ms. D. acknowledged her problems with panic attacks, anxiety and depression. She is being treated by her family doctor, Dr. Robert McKay and has just started seeing a psychiatrist, Dr. Ross. Her family doctor had prescribed medication for her to deal with her depression, anxiety and insomnia. She believes that her depression stems in part from her having to deal with the Children's Aid Society as an adult. None of her four children are in her care. Her two eldest children, a son 14 and a daughter 13 have been adopted and she does not see them. She has no visits with her daughter, Destiny.

[55] She stated that she did not meet with Dr. Catharine Lee and had no involvement in the assessment process. As Dr. Lee was not required to testify I accept the statements contained in Dr. Lee's report as being accurate with respect to the involvement of Ms. D. in the assessment.

[56] During access visits Ms. D. and L. spoke about what is going on with L.'s life. She understood from L. that: schooling was good, she was feeling fine and that she had new friends. During access they did arts and crafts together, played board and video games, watched movies, painted and drew. They would also play basketball, hoola hoops and go on the jungle gym. They read books together.

6: LEGAL CONSIDERATIONS

[57] Sections 65.1 and 65.2 of the Act govern status review applications concerning children who are Crown wards: CFSA sections 65.1 and 65.2. The legislative scheme is as follows.

[58] The Society may apply to a court at any time for a review of the child's status: CFSA clause 65.1(2)(a)

[59] In an application for a review of a child's status under s. 65.1 the court may, in the child's best interests, vary or terminate an order made under s. 57: CFSA clause 65.2(1)(d). This includes the jurisdiction, subject to s. 59, to vary or terminate an order for access to a Crown ward: CFSA ss. 65.2(2).

[60] Subsection 37(3) of the Act sets out the circumstances relevant to the determination of a child's best interests. They include the following:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[61] Subsections 59(2.1) and (3) address access and termination of access to a Crown ward as follows:

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied 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. 2006, c. 5, s. 17 (2).

(3) The court shall terminate an access order with respect to a Crown ward if,

(a) the order is no longer in the best interests of the child; or

(b) the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied. 1999, c. 2, s. 16; 2006, c. 5, s. 17 (3).

[62] In the Children's Aid Society of Niagara Region v. J.(M.), 2004 CarswellOnt 2008 the court stated at paragraph 45:

... using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is "significant." Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

[63] The Act at ss. 59(3) requires a court to terminate an access order with respect to a Crown ward if:

(3) The court shall terminate an access order with respect to a Crown ward if,

(a) the order is no longer in the best interests of the child; or

(b) the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied.

7: ANALYSIS

7.1: Is the existing access order in the child's best interests?

[64] It is necessary to determine whether the existing access order remains in the best interests of the child.

7.1.1: Child's emotional needs

[65] The child's physical, mental and emotional needs are being met in her current placement.

[66] The evidence does not satisfy me that continuing access with Ms. D. will meet the child's emotional needs.

[67] Ms. D. has missed many visits over an extended period of time. She has not seen her daughter since July 2011. Missed visits were a disappointment to the child.

[68] Doctor Lee's assessment report concludes that at best the emotional relationship between the mother and child can be characterized as a "disorganized/disoriented pattern of insecure attachment". This is to be expected given the "lack of consistency in access visits and lack of contingent responsiveness during access visits."

[69] The access order in force at this time was made in circumstances where Ms. D. had a history of missed visits. The access order imposed a consequence upon Ms. D. should she not exercise access in accordance with the schedule. The consequence was her frequency of access would be reduced. Unfortunately, Ms. D. has been unable to maintain contact with the child even on the reduced access schedule.

[70] The child's emotional needs are not being met in circumstances where there has been inconsistent access exercised and currently where there has been a lengthy period without any access taking place.

[71] If the access order is maintained, it allows for the opportunity for infrequent and irregular access. This is not in the child's best interests.

7.1.2: Family connections

[72] Justice Phillips ordered access in part because it was "important for the child to have a sense of her...racial heritage and background."

[73] Terminating access would deprive the child of this benefit to the extent her heritage and background were being shared with her by Ms. D.

[74] In her evidence, Ms. D. did not state how she was imparting or sharing her racial heritage and background with her daughter. She did not give evidence that this was an important value to her.

[75] The foster mother's evidence is that she is maintaining a connection between the child and her sister, Destiny, and the paternal grandparents.

7.1.3: Potential for a secure place as a family member

[76] If access is terminated, the foster parents intend to apply to adopt L. The evidence of the foster mother is that the child looks forward to the prospect of being adopted. There will be a party when this happens.

[77] Having regard to the child's age, level of development and past experiences with changing placements, being able to know that she will be a permanent member of the foster family is important to that child and is in her best interests. Terminating access will allow an adoption application to proceed and the chance for the child to have a positive, secure and enduring relationship within the foster family.

[78] The mother argued that letting the child know that she could be adopted was improper. It undermined the child's relationship with the mother. With respect, that submission is not based on the evidence. The evidence is that there is an insecure attachment between mother and daughter which arises most likely from missed visits and the lack of contingent responsiveness during access. I accept Doctor Lee's findings. They are based on an appropriate investigation and consideration of psychological testing, observation and analysis.

7.1.4: Change in circumstances

[79] Being removed from the care of her paternal grandparents is a relevant circumstance to be considered when determining whether to terminate or retain the existing access order is in the child's best interests.

[80] The placement of the child with them was expected to be a long-term one. This is where she was expected to find her positive, secure and enduring relationship. Her best interests at the time were met with L. residing with these grandparents. The requested custody order was not granted to them by Phillips J. as he held that "the placement with [them]...is not without its potential challenges."

[81] Because the paternal grandparents were not approved as a placement for the child due to Provincial rules, she was moved and eventually place in the care of the foster parents with whom she now resides.

[82] The court expected placement with the grandparents would be the centrepiece around which the Crown wardship order would persist. The access order made at that time in favour of the mother was stated to be for the benefit the child. The child was entitled to know her mother and have contact with her. This was to be the stable and secure placement for the child. The totality of these circumstances made access beneficial and meaningful for the child: CFSA ss. 59(2.1).

[83] The child is not residing with her paternal grandparents nor is she seeing her mother. The latter factor is due to inaction on the part of the mother. I accept the mother's evidence that she has significant emotional difficulties that she must address and they have affected her ability to maintain contact with the child such that the beneficial and meaningful relationship found by Phillips J. could continue.

[84] The child is now residing in a placement that, on the evidence, is a positive one where she is secure and it will endure.

[85] I find that having regard to all of these circumstances it is no longer in the best interests of the child that the access order in favour of Ms. D. continue.

7.2: Is access beneficial and meaningful?

[86] Though not necessary to determine, as I have found that continued access is no longer in the best interests of the child, I will now consider whether the requirements of clauses 59(2.1)(a) and (b) remain satisfied.

[87] As set out above, the court is to terminate an access order with respect to a Crown ward if it is no longer satisfied that the relationship between the parent and the child is beneficial and meaningful to the child and the ordered access will not impair the child's future opportunities for adoption.

[88] When the matter was before Phillips J., the onus of demonstrating that access between the child and her mother met the requirements of being beneficial and meaningful and not impairing adoption opportunities was on the mother: See Children's Aid Society of Niagara Region v. J.C., 2007 O.J. No. 1058 at para. 23, (Ont. Div. Ct.)

[89] The issue of who has the onus in circumstances where an access order to a Crown ward exists and a second court is asked to vary that access order was dealt with in Children's Aid Society of Hamilton v. M.A., 2010 O.J. No. 2304 at para. 9, as follows:

In the Divisional Court decision of the Children's Aid Society of the Niagara Region v. E.J.C ... Justice Aitken accepted that the trial judge below had erred in placing the onus upon the Society, thus ignoring the true meaning of the provisions of s. 59(2) now s. 59(2.1) of the Act. With great respect, that does not fully answer the question of upon whom the onus of proof rests in a situation where an order already grants access and a second court is asked to vary that aspect of the order. Ultimately, however, the issue of onus is overshadowed by the paramount duty of the court to act in the best interests of the child.

[90] I have, for the purposes of this Status Review Application brought by the Society, placed the onus upon it to prove that the access order should be terminated because it is no longer in the best interests of the child. As set out above, the Society has met its onus in this regard.

[91] I agree with the decision in Children's Aid Society of Hamilton v. M.A., supra, that the issue of onus with respect to the clauses 59(2.1)(a) and (b) analysis is overshadowed by the paramount duty of the court to act in the best interests of the child.

[92] For the same reasons that access is no longer in the best interests of the child, the Society has satisfied me that it is also no longer beneficial and meaningful to the child.

[93] When access does not take place under the order it is upsetting to the child. Keeping in force a right to access under the order that is exercised infrequently is not in the best interests of the child. It causes upset and likely confusion for the child not knowing if access is to be exercised and disappointing when it is not.

[94] When access does take place it is pleasant. But, that is not enough to find that it is beneficial and meaningful. The bonding and emotional attachment that was expected between the mother and child in circumstances where the child was living with her paternal grandparents and visiting with her mother regularly does not exist at this time. I agree with Sherr J., who stated in Catholic Children's Aid Society of Toronto v. Shantelle S., 2011 ONCJ 803 at para. 142 that, "…even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child." This is not the case here.

8: REQUEST FOR AN OPENNESS ORDER

[95] Ms. D. argued that CFSA s. 145.1.1 should be considered. This section provides that where a Society intends to place a child who is a Crown ward for adoption and there is an access order to the child to another person, the Society is to give notice to that person that (1) it intends to place the child for adoption, (2) the access order will terminate upon the placement for adoption and (3) the person has the right to apply for an openness order within 30 days after the notice is received.

[96] Ms. D. asks that this case be treated as her request for an openness order. I am not prepared to do so. The case was not pleaded nor was evidence led on the basis of those sections being considered. It was not until Ms. D.'s counsel made submissions that this request was made.

[97] The section referred to above enable the Society to place Crown wards for adoption even if there is an access order. The Act provides that the Society may plan for the adoption of a child who is a Crown ward with access. As set out above, before placing the child for adoption, the Society must give notice to any person who has access. That person then has 30 days to apply for an openness order which would permit post adoption contact.

[98] The court has jurisdiction to make an openness order if it is satisfied that it is in the best interests of the child and it will permit continuation of a relationship which is beneficial and meaningful to the child: See C.F.S.A. ss. 145.1.2(6)

[99] Ms. D.'s access to L. is being terminated because it was found not to be in the child's best interests nor is their parent and child relationship beneficial and meaningful to the child.

[100] The court is also required to consider the ability of the prospective adoptive parent to comply with an openness order: see C.F.S.A. ss. 145.1.2(7)

[101] The new provisions relating to openness orders were addressed by the court in C.A.S. v. R.S., [2012] O.J. No. 1037 (Ont. SCJ) where the court held at para. 154 as follows:

As this court held in Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, 2011 O.J. No. 4512, the operative words of s. 59(2.1)(b) – 'will not impair' - placed the onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The recent amendments create new and multi-phased dynamics which must be addressed in assessing the impact of an access order on the adoption process. RS and ML have presented no evidence which even addresses, let alone satisfies, the second part of the s. 59(2.1) test.

[102] The same can be said in this case. The parties did not present evidence that satisfies the second part of the s. 59(2.1) test, that is, whether adoption opportunities would be impaired.

[103] The only evidence with respect to the foster parents willingness to allow ongoing contact with the child following adoption is that they will agree to receive e-mail one time per month, provide pictures twice a year and the child's report card once a year through the Society.

[104] The terms that should be contained within an openness order were not addressed.

[105] The evidence did not deal with the ability of the foster parents to comply with an openness order.

[106] The Family Law Rules require cases be dealt with justly which includes ensuring a procedure that is fair to all parties: See Family Law Rules, subrules 2(2) and 3(a). The case would not be dealt with in accordance with the objectives of the Rules if the application for an openness order was considered in circumstances where it was not pleaded, evidence was not led in relation to the issue and it was first raised during submissions on behalf of Ms. D. at the end of the case.

9: DISPOSITION

[107] An order will issue terminating access between the respondent, D.D., and the child. The Order of Phillips J., dated July 28, 2009, shall be varied accordingly.

Released: August 3, 2012

"original signed and released"

Barry M. Tobin Justice