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 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 File and Parties

Court File No.: C48945/09

Toronto: January 4, 2013

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant,

— And —

L.C., Mother D.C., Father

Respondents.

Before: Justice Ellen B. Murray

Heard on: December 6, 11, 12, 14 and 17, 2012

Reasons for Judgment released on: January 4, 2013

Counsel:

Ms. Heather Webb — for the applicant society

Mr. Courtney Kazembe — for the respondent mother

Ms. Tiffany Lau — for the respondent father

Reasons for Judgment

Murray, E. B. J.:

[1] Issue and Background

[1] The issue in this trial is whether an order should be made for access by the children B., born […], 2006, and L., born […], 2004, to their parents, L.C. and D.C. The C. are separated. Both children were made Crown wards on December 30, 2011 by Justice Carole Curtis. The Society plans to place them for adoption.

[2] Since the children were apprehended, access between the parents and the children has been at the Society's discretion. Currently, the children have supervised visits with Ms. L.C. once a week for 1 ½ hours, and supervised visits with Mr. D.C. once a month for one hour. Ms. L.C. asks for an increase in the frequency and duration of visits, but presents no specific plan. Mr. D.C. requests an order that provides for visits every two weeks for eight hours.

[3] The Society opposes any order with respect to visits. The Society witnesses testified that, if this court makes no order as to access, it is the Society's intention to maintain access of some type for both parents for some period of time, perhaps until an adoption placement is found. Decisions about access would be based on the Society's assessment of each parent's ability to support the children in a transition to an adoptive placement.

[4] In this trial I heard evidence from Ms. L.C.; her mother, L.H.; Dr. Trevor Gillmore, who provided methadone treatment for Ms. L.C.; Stephanie Penton, the family services worker; Dr. Daniel Fitzgerald, who conducted psychological assessments of both children shortly after they came into care, and again in May 2012; Rafeket Oren, the children's services worker; Susan Froehlich, an adoption worker from the Society; and Mr. C.P., the children's foster father. I did not receive evidence from Mr. D.C., and he did not attend the trial, although counsel representing him cross-examined witnesses and made submissions.

1. HISTORY OF PROCEEDINGS

[5] L. and B. were apprehended on December 15, 2009, and neither child has been in the care of either parent since that time.

[6] Justice Curtis heard a summary judgement motion, and in her decision on December 30, 2011 made the following orders:

1. Protection findings were made under sections 37(2)(b) & (g) of the Act, and
2. Both children were made Crown wards.

[7] The parties agreed that the issue of access be put over to trial.

[8] I will not repeat all the findings of fact made by Justice Curtis, but set out a summary below.

Summary of Justice Curtis's Findings:

• Ms. L.C. is addicted to oxycontin. After apprehension she enrolled in a methadone program twice, but refused to participate in testing to show she was drug-free. She has not engaged in counselling.

• Mr. D.C. abuses both oxycontin and cocaine. He enrolled in a methadone program, but refused to participate in testing to show he was drug-free.

• Mr. D.C. is diagnosed as paranoid schizophrenic. The most recent medical report in evidence (from 2004) indicates that he "remains actively psychotic, with severe paranoid delusions, difficulty coping, poor concentration, poor social skills and has a high risk of getting into altercations because of perceived social slights or fear of being threatened by others."

• Mr. D.C. has not followed through on referrals for mental health services.

• Mr. D.C. has an "extended history with the police regarding drug contacts, assaults, weapons, and property crimes and offences".

• The relationship between the parents is "dysfunctional, high conflict and violent". There are multiple police occurrence reports involving the parties related to domestic violence.

• Ms. L.C. persisted in continuing a relationship with Mr. D.C. even after the children's apprehension, refusing to acknowledge the risk he poses to her and to the children.

• "The parents were unable to provide the children with routine and structure when the children were in their care." At the time of apprehension, L. had missed a great deal of school, and was behind academically. B. was functioning well below her chronological age. Although she was almost four years old at apprehension, she was not toilet-trained and could not feed or dress herself.

[9] Justice Curtis determined that an order for Crown wardship was in the children's best interests. She found that placement with Mr. D.C. posed a significant risk, "given the severity of his diagnosis, the chronic nature of his mental health and his ongoing lack of treatment, and his long history of violence and controlling behaviour towards the mother." She ruled out placement with Ms. L.C. because of her lack of progress in dealing with substance abuse, and her poor judgment in continuing the relationship with father and her failure to follow through on the Society's recommendations for counselling with respect to that relationship.

[10] Ms. L.C. appealed the order for Crown wardship. The appeal court received fresh evidence. Justice George Czutrin dismissed the appeal on June 18, 2012. He noted that the fresh evidence demonstrated that Ms. L.C. continues to have an issue with substance abuse, that she has not followed through with recommended services, and that she had been planning for the children with a man who has a history of drug abuse. Ms. L.C. advised that she had begun living with this man in November 2011, and separated from him on May 22, 2012.

2. EVIDENCE

2.1 The Children

[11] L. and B. have been subjected to considerable instability in their short lives. Their experience with their parents is set out above.

[12] At apprehension, they were placed with a foster parent identified only as "C.". In February 2011 they were transferred to the care of their adult half-sister Ms. P.C. (daughter of Mr. D.C.) and her partner, Mr. C.P., who had been approved as kin-in-care providers. Ms. P.C. and Mr. C.P. were only 21 years old when the children were put in their care. Ms. P.C. and Mr. C.P. told the Society they hoped to adopt the children when they became available for adoption.

[13] Evidence from the workers and Dr. Fitzgerald indicates that the children are happy and settled in this home. However, they do not identify Ms. P.C. and Mr. C.P. as "parents", and call them by their first names. Mr. C.P. testified that they treat Ms. P.C. as an older sister, and that he is "like an uncle".

[14] In May 2012, Ms. P.C. and Mr. C.P. withdrew their adoption plan. Mr. C.P. explained their decision by saying that the children require a lot of attention and time, and that he and Ms. P.C. reluctantly realized that they would be unable to fulfil their own career plans and care for their children at this stage of their lives. He said that if the children had been less demanding, or if he and Ms. P.C. had been at a different stage of their own lives, that they could have continued with their plan to adopt.

[15] Despite their decisions about adoption, Mr. C.P. testified that he and Ms. P.C. love L. and B., and that they are willing to have the children continue to live with them until an adoptive home is found. They are open to maintaining contact with the children after they are placed for adoption, and the Society plans to facilitate this contact.

[16] The children understood when they went to live with Ms. P.C. and Mr. C.P. that they would be staying with them permanently. The indications which they gave to their children's services worker and to Dr. Fitzgerald were that they were "content" with this arrangement. They did not expect to be returning to the care of either parent. The children have not yet been told that they will be moving again.

[17] Not surprisingly, Dr. Fitzgerald's assessments reveal a picture of two children who have strong dependency needs and who are anxious about instability and uncertainty in their lives. B. yearns for a relationship with a mother and a father in a stable family. L. is no longer sure that she can expect such a relationship, and is "vigilant" for signs of rejection. Dr. Fitzgerald thought that even though the children had not been told that they are not staying with Ms. P.C. and Mr. C.P., that L. may have picked up cues that this is no longer a "forever" home.

[18] The children have reacted differently to their situation. L. was anxious and insecure at the time of the apprehension, and that anxiety has increased with time. She keeps her feelings inside, and although described by the school as having good social skills, she can sometimes present as sad and withdrawn. Mr. C.P. and Ms. P.C. say that L. has a "constant" need for attention. Although L. is of average intelligence, she is behind academically, and is receiving extra help. She has not, however, been diagnosed as having a learning disability. Dr. Fitzgerald testified that L. has the capacity to form attachments to adult caregivers, although she will have to overcome her mistrust of such caregivers.

[19] In Dr. Fitzgerald's initial assessment, he found that although B. was "delayed in the development of many skills and abilities that might be typically evident for a four-year-old child", but did not diagnose her as having a developmental disability. He found that her intelligence was in the "low average" range. Current information indicates that B. does quite well at school academically; she is reading one year above grade level.

[20] B.'s challenges are in the area of behaviour and self-regulation. She can be aggressive, demanding, and bossy. Although outgoing, she has few friends. Teachers have had difficulty dealing with her in the classroom, because of aggressive behaviour, and, recently, sexualized behaviour. The Society is trying to determine the cause of B.'s behaviour, and has initiated testing for fetal alcohol syndrome.

[21] Ms. Froehlich, who has 26 years experience as an adoption worker with the Society, testified that the Society plans to look for an adoptive home that would take both girls. The children's special needs, described above, and their age mean that they will not be easy to place, but Ms. Froehlich was confident that an adoptive home could be found. Her evidence is that the Society is successful in finding adoptive homes for 98% of the children it seeks to place, and that the Society has been successful in placing children in circumstances similar to those of L. and B. together. She estimated that, taking into account a lengthy period of pre-placement visits, it would take approximately 8 months to select prospective adoptive parents and place the children. The Society has not yet begun to search for prospective adoptive parents for L. and B., because it wishes to have the issue of access settled before this search was undertaken.

[22] Parents' counsel in cross-examination raised the issue of whether the children would consent to an adoption; the consent of a child over seven years is required. Ms. Froehlich testified that the gradual, child-centred process which the Society follows in placing children and monitoring their placement makes it quite unlikely that L. and B. would fail to consent at the appropriate time. Ms. Froehlich explained that, when a good adoptive candidate is identified, that the children would be consulted, and, if they wanted to pursue the possibility of placement, that a slow process of progressive visits would begin. If both the adoptive parents and the children approved, the children would then be placed for a probationary period. Probation would be a minimum of 6 months, and likely 12 months. An adoption application would be initiated only after the probationary period was successfully completed. The application would not be commenced if the children were not in support. It is only at this last stage—when the children would have known the adoptive parents, and lived with them for a considerable probationary period, that their consent to an adoption would be sought. Each child would have separate legal representation in the consent process.

[23] Ms. Froehlich testified that she has never known a child who did not consent to an adoption after this process.

2.2 Ms. L.C.

[24] Ms. L.C. gave evidence that she is "a different person" than the person she was in 2009. In her affidavit, sworn November 27, 2012, she stated as follows:

• She completed methadone treatment to deal with her oxycontin abuse shortly before trial, and is now drug-free.

• She has not returned to her relationship with Mr. D.C., a relationship which she now recognizes was abusive and unhealthy for her and the children. She has been living with her boyfriend, R.C., since September 2010.

• She began attending a Grade 12 program at an alternative school shortly before trial, and hopes to go to college.

• She has joined a church, which she attends regularly.

[25] Both Ms. Penton and Ms. Oren agreed that Ms. L.C. has recently taken some positive steps in her life, but they were both cautious about whether these steps augur long term change.

[26] The stability of Ms. L.C.'s personal life is still fragile. Justice Czutrin found that Mr. R.C. was a negative element in her plan in his June 2012 decision. Although Ms. L.C. told Justice Czutrin that she separated from Mr. R.C. in May 2012, her affidavit submitted to me made no reference to a separation. In cross-examination, Ms. L.C. testified that she in fact lives with Mr. R.C. only part of the time, and spends about half her time living with her mother in Keswick. She explained that Mr. R.C.'s excessive drinking leads her to leave his home periodically.

[27] Dr. Gillmore testified that Ms. L.C. began a methadone program in April 2011. She submitted urine samples twice weekly so that her progress could be monitored. Her samples showed continued use of oxycontin until February 2012; since then (except for one occasion in April 2012), her urine screens have been "clean". Dr. Gillmore rated her progress in treatment as good. Ms. L.C. advised Dr. Gillmore on November 23, 2012 that she wanted to cease methadone treatment, and to receive 'supportive services" from him— continued urine screens, with some office consultations. Ms. L.C. saw Dr. Gillmore on November 30, 2012, but further meetings had not yet been arranged at the time of his evidence on December 12, 2012.

[28] Dr. Gillmore has had extensive experience in developing standards for methadone treatments in Ontario, and in administering treatments to addicted individuals, including individuals who work in safety-sensitive positions, such as airline pilots. He testified that relapse after completion of a methadone program is common, particularly for those individuals who do not have a stable home situation.

[29] The evidence before Justice Curtis indicated that Ms. L.C. had twice before undertaken methadone treatment for her addiction, and had relapsed. She has just completed her most recent course of treatment. It is not clear how strong her support system is. While Ms. L.C. is to be congratulated for her efforts in dealing with her addiction, it is too early to say that she will be successful in establishing a drug-free life.

[30] Having said that, it is important to note that the issue before me is access, and not a return of the children to Ms. L.C.'s care. Factors that preclude a return of a child to a parent's care may not prevent the development of a positive access relationship.

2.3 Mr. D.C.

[31] Mr. D.C. swore an affidavit intended to form his evidence in chief at this trial. However, it was not submitted in evidence as he did not attend the trial and make himself available for cross-examination, so I have no updating information about his situation. No explanation was offered for his absence.

3. THE LAW

[32] Section 59(2.1) of the Act contains a presumption against an order for access for a child who is a Crown ward. The person seeking access has the onus of meeting the test in that section, which is set out below.

Access: Crown ward

59(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.

[33] Justice Craig Perkins in Children's Aid Society of Toronto v. T.L. & E.B., 2010 ONSC 1376 described the two-part test set out in this section as a gateway to a possible access order:

Section 59(2.1)(b) operates even if there is no immediate prospect of an adoption: "A court shall not make or vary an access order ... unless the court is satisfied that ... access will not impair the child's future opportunities for adoption" (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child's wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child's special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

3.1 Is the Relationship Beneficial and Meaningful?

[34] Justice Joseph Quinn's interpretation of the first branch of the test set out in s. 59(2.1) in Children's Aid Society of Niagara v. M.J. is frequently cited:

What is a "beneficial and meaningful" relationship in clause 59(2)(a)? 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.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

[35] The assessment of whether a relationship is "beneficial and meaningful" should be viewed from the child's point of view. It would be helpful to have evidence from a psychologist who had observed parent/child interaction or from a clinical investigator from the Office of the Children's Lawyer to assist in assessing the quality and importance of access to the children. I did not have such evidence.

[36] There is plentiful caselaw about what is "not enough" to amount to a beneficial and meaningful relationship, but not much about what is sufficient.

[37] Courts have observed that the fact that visits with a parent are "generally enjoyable" for a child is not sufficient for a court to conclude that the relationship between the parent and child is "beneficial and meaningful".

[38] My colleague Justice Geraldine Waldman observed in Children's Aid Society of Toronto v. S.A., 2012 ONCJ 42, that the court should be conscious of the fact that deficiencies in a parent that might be a concern when the issue is whether to return a child to that parent's care may not be a concern (or may be a lesser concern) when the issue is access. I agree with that observation.

[39] My conclusion is that the relationship which the children have with their mother is "beneficial and meaningful". I have not reached the same conclusion with respect to the children's relationship with their father. My reasons are set out below.

3.1.1 Children's Relationship with Their Mother

[40] The children's relationship with their mother is the only consistent relationship they have had over their lives with a primary caregiver. Except for a brief period when the children were in Mr. D.C.'s care pursuant to an order in the custody action commenced by him, they were cared for primarily by Ms. L.C. prior to apprehension.

[41] Since apprehension, Ms. L.C. has been regular in attending visits, and has generally attended on time.

[42] The evidence from Ms. L.C., as well as the evidence from the society workers who have supervised visits, indicates that the visits are generally positive experiences for the children.

• The children look forward to the visits.

• They recognize that Ms. L.C. is their mother, and call her "Mommy".

• Hugs and kisses are exchanged during the visits.

• Ms. L.C. provides healthy home-cooked meals for the children, and the first part of the visits is generally involved in enjoying that meal.

• The remainder of the visit may be spent in playing in the gym, or in Ms. L.C. reading to the children or telling stories.

[43] Both Ms. Penton and Ms. Oren were careful not to agree in cross-examination with any suggestion that the visits were specifically "beneficial and meaningful". They offered examples of occasional problems on visits. For example, both workers criticised Ms. L.C. for bringing too many gifts for the children, saying that the purpose of the visits was to focus on the relationship the children had with their mother, and not on the gifts they expected when they saw her. Ms. Oren was critical of Ms. L.C. because she allowed B.'s aunt to attend the child's birthday party during a visit, after Ms. Oren had advised that she would not permit the aunt to attend because Ms. L.C. had not requested this permission in advance.

[44] In my view, the problems on visits with Ms. L.C. cited by the workers involve relatively minor issues or isolated incidents, and are not problems that would lead me to reach the conclusion that an otherwise positive relationship was not "beneficial and meaningful".

[45] Both Ms. Penton and Ms. Oren made it clear upon questioning that their major difficulty with endorsing the relationship as "beneficial and meaningful" was their understanding that such a finding would lead to an order for access, which would block an adoption. Ms. Oren testified that she did not want there to be an access order because that would mean that the children would remain in foster care "for ten to thirteen years".

[46] I understand the concern that an access order --which might lead to an openness application by a parent, and to an openness order allowing some contact post-adoption -- might interfere with the children's prospects for adoption. However, in my view this concern is conceptually a different issue than the assessment of the quality and importance of the children's relationship with a parent.

[47] The children have told Dr. Fitzgerald that they like their visits with their mother. His report, after having talked not only with the children but with one of the foster parents and the children's services worker, says that the visits "go well" and that the children look forward to them. His opinion is that the children are "close" to their mother and that interruption of contact with her would be "difficult" for them. The evidence establishes to my satisfaction that the children's relationship with their mother is meaningful to them.

[48] This is not a case, such as Catholic Children's Aid Society of Hamilton v. L.S., in which a child is ambivalent or reluctant to see a parent. This is not a case, such as Children's Aid Society of London and Middlesex v. C.M., in which a child suffers severe emotional distress as a result of visits with a parent. This is not a case, such as Children's Aid Society of Toronto v. C.O., in which a parent has missed many visits, and thus is an inconsistent presence in the child's life.

[49] L. and B. have regular, positive, loving interactions with their mother, interactions in which she demonstrates sensitivity to their physical and some of their emotional needs. Dr. Fitzgerald testified that L.'s capacity to form future attachments indicated an early relationship with a primary caregiver that was nurturing in some respects. His view was that the child did not show signs of an attachment disorder. That caregiver was Ms. L.C. In my view, the children's relationship with their mother is beneficial to them.

3.1.2 Children's Relationship with Their Father

[50] Mr. D.C. failed to establish that the children's relationship with him is meaningful and beneficial.

[51] The evidence at its best indicated that parts of some visits are enjoyable for the children. They like to play, and enjoy playing with Mr. D.C. when he pays attention to them. Workers agreed that L. seeks her father's attention. This behaviour must be viewed in context of the evidence from the workers and Mr. C.P. that L. is a needy child, who constantly seeks the attention of any available adult.

[52] The evidence indicates that the children will run to greet Mr. D.C. at the beginning of a visit. Evidence also demonstrates, however, that the children will happily run to greet other adults in their lives, including Ms. Penton and Ms. Oren.

[53] Both Ms. Penton and Ms. Oren supervised visits between Mr. D.C. and the children. They testified that he is sometimes engaged and playful with the children. However, during every visit there is a period of time when he is disengaged; he simply stares at the children, and sometimes appears to be sleeping.

[54] Mr. C.P. testified that the children do know that Mr. D.C. is their father. Ms. Oren's evidence is that although the children frequently talk with her about their mother, they rarely raise the subject of Mr. D.C. Dr. Fitzgerald testified that B. in particular "appears to be concerned about having a relationship with a father figure, something which she feels is missing in her life".

[55] Unlike Ms. L.C., Mr. D.C. has been an inconsistent presence in the children's lives since their apprehension. There have been two lengthy periods in which he did not attend visits—when he was incarcerated from August to December in 2010, and in 2011, when he was absent from February to August. His explanation of this latter absence is that he was incapacitated due to "mental health issues". In addition to these two lengthy periods, there have been visits which he has failed to attend for no clear reason (for example, on June 13, 2012). Consistency of contact is important in maintaining any relationship with a child, but particularly with children such as L. and B., who have high dependency needs and are anxious about abandonment and rejection.

3.2 Will an Access Order Impair the Children's Future Opportunities for Adoption?

[56] As discussed in other cases, the amendments made by Bill 179 to the Act now allow a society to proceed with adoption placement of a child who is a Crown ward and the subject of an access order. When notice of intent of such placement is served, the access order terminates, and the person who has the right of access may apply for an openness order. These changes allow a court in appropriate cases to make an order for access, even when the permanency plan approved by the court for the child is adoption.

[57] The test which the parents must meet continues to be onerous. As held by Justice Alex Pazaratz, "The operative words of s. 59(2.1)(b) -- 'will not impair' -- place an 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".

[58] There is no onus on the Society to prove that it has already identified prospective adoptive parents for a child, or that a child is "adoptable". Having noted this, I am satisfied based on the evidence of Ms. Froehlich that the Society is realistic in its plan to place the girls together in one adoptive home within a reasonable period of time.

[59] An access order may impair a child's future opportunities for adoption for a number of reasons.

[60] Potential difficulties with an access order may stem from a parent's personality or behaviour. Caselaw indicates that a parent who has a history of conflict with Society staff or who has failed to support a child's foster placement will not succeed in establishing that an access order will not impair his or her child's opportunities for adoption.

[61] Difficulties with an access order may have little to do with the parent, but relate to the prospective adoptive parents' attitudes towards any contact between the child and the biological parent.

[62] The Society offered no research-based evidence about the attitudes of prospective adoptive parents on this issue. It had no evidence to present specific to the attitudes of prospective adoptive parents for these children, because it had decided not to undertake a search until this trial was completed. What the Society did offer was Ms. Froehlich's opinion, based on her personal experience as an adoption worker. She thought that any order which provided for the type of access sought by Ms. L.C. or Mr. D.C. would make an adoptive placement "just about impossible". She explained that logistics itself would present a barrier—weekly or bi-weekly visits would represent a major interference in a family's schedule. She added that in her experience adoptive parents worry that any access will interfere with the children's ability to form an attachment to them.

[63] Dr. Fitzgerald testified that in his experience, access can interfere with children's attachment to their adoptive parents. His evidence is that arrangements for post-adoption contact between children and their biological parent is most likely to be successful when all involved (adoptive parents, biological parent and child) are motivated and educated on the issue, and when adoptive parents are confident in their role.

[64] I have concluded that Mr. and Ms. L.C. have both failed to establish that an access order will not impair their children's future opportunities for adoption.

3.2.1 Access Order to Ms. L.C.

[65] In Ms. L.C.'s case, it is clear that she will not cease her efforts to have L. and B. returned to her care. She was candid in admitting this.

• As recently as early 2012, Ms. L.C. persisted in telling the children that they would be coming home with her. She has since not made these promises, but has still not told the children plainly that they will not be returning to her care.

• After the dismissal of her appeal by Justice Czutrin, Ms. L.C. told Ms. Penton that she would "keep appealing until the children are returned".

• In July 2012 Ms. L.C. told Ms. Oren during a visit that she was organizing a group to sue the Society, and complained that the children "should never have been apprehended" and that workers had lied about her drug use. She said that she would continue to "fight" to have the children returned; it is not clear whether the children overheard her remarks.

• In August 2012, Ms. L.C. said that she intended to seek a variation of the order of Crown wardship by way of status review.

[66] In viva voce evidence before me, Ms. L.C. said that she understood why the children were removed from her care, and that she would support an adoptive placement. However, at the same time she testified that she felt that the children were "outcasts" because they were not with her, and said: "I don't feel one bit that my children should be away from me".

[67] Ms. L.C.'s mother reinforces her hopes that the children will be returned. Ms. L.H. testified that she would like the children "to come home". She tells L. about "the things we used to do", and assures her that she will be able to "do them again someday".

[68] Ms. L.C.'s evidence before me was that she will continue to "fight to have the children returned" if possible, even though she knows that a return is not likely. She also said that she will pursue an order for ongoing contact with the children if they are placed for adoption.

[69] Ms. L.C.'s counsel asked all the Society witnesses "What is wrong with a mother's desire to have her children returned?" The answer is nothing, if one focuses only on that mother's pain. However, if that pain means that she cannot help her children progress towards a permanent home, then access is problematic.

[70] It is clear to me that Ms. L.C. has not accepted that it is in the children's best interests not to be returned to her, and to be adopted. It may be that counselling by a child professional, perhaps from outside the Society, would have assisted her in accepting the fact that her children need an adoptive home, but she has not received such counselling.

[71] I expect that Ms. L.C.'s lack of support for an adoption and her resolve to have the children returned to her care would lead many adoptive parents to hesitate to attempt to bring L. and B. into their family. As Ms. Froehlich said, at least some adoptive parents would worry that a possible openness order could interfere with the children's attachment to them. Prospective adoptive parents might be put off by the task of managing the relationship with Ms. L.C., without Society assistance (as could be the case after any openness order), and with the stress of future litigation triggered by an openness application.

3.2.2 Access to Mr. D.C.

[72] With respect to Mr. D.C., there is little evidence that would allow me to assess whether an access order to him would impair the children's future opportunities for adoption. That is because he chose not to give evidence. There is no evidence about his attitude towards the Society's plan to have L. and B. adopted by someone other than Ms. P.C., his older daughter.

[73] There is no evidence that he (or Ms. L.C.) actively tried to interfere with or undermine the children's placement with Ms. P.C. and Mr. C.P. I do note, however, that Ms. P.C. and Mr. C.P. have insured that neither parent knows their address. Mr. C.P. explained they worried that if the parents knew their location that it could "lead to a bit of drama". He testified that Mr. D.C. "has his ups and downs", and that they were concerned that he would show up and try to see the girls.

[74] There is evidence that Mr. D.C. has occasional disagreements with the Society workers, during which he may be rude, and that he sometimes does not strictly comply with workers' directions about visits. There is also evidence that on one occasion—when he had a disagreement at Society offices with Ms. L.C.'s boyfriend, Mr. R.C.—that he was so angry that he could not be calmed for some minutes, and was unable to focus on the girls and his visit. However, by and large, Mr. D.C. is compliant with the Society requests as to visiting arrangements, and is not disruptive.

[75] However, absent evidence from Mr. D.C., I am not persuaded that he will not act in a way that will hinder the children's placement in an adoptive home. It should be kept in mind that the most recent psychiatric evidence about Mr. D.C. is that he has paranoid delusions, poor social skills and has a "high risk of getting into altercations with others".

4. An Addendum

[76] I am concerned about the failure of the Society in this case to move promptly to fulfill its statutory mandate to secure an adoptive placement for the children. It would have been open to the Society to serve a notice of intent to place the children after July 18, 2012—the expiry of the appeal period of Justice Czutrin's order. Ms. Froehlich's explanation that the Society wanted to see what further access order, if any, would be made, is not a sufficient explanation of the delay. As the Society knows, any existing access order would be extinguished once a notice of intent to place the children was served. I appreciate the pool of prospective adoptive parents might have been reduced because of the possibility of an openness application, but that concern is not an excuse for a failure to even start a search for adoptive parents for these children.

[77] I accept Ms. Froehlich's evidence that some prospective adoptive parents are frightened by the thought of any contact with the biological parent of the child they wish to adopt. She testified that the Society does not maintain statistics about whether prospective adoptive parents are receptive to openness arrangements or orders, in part because the possibility of such orders being made is still very new. Reluctance by adoptive parents to consider some form of openness may stem in part from a lack of understanding about the potential benefits of openness, and the range of what openness might entail. The Society may wish to consider some further education on this topic for prospective adoptive parents, as well as parents whose children are to be adopted.

Released: January 4, 2013

Signed: Justice E. B. Murray