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: April 14, 2015
Court File No.: Chatham-Kent, Ontario 318/12
Between:
Chatham-Kent Children's Services, Applicant
— AND —
M.C.A.T., mother M.B., father J.B., paternal step-grandfather
Respondents
Before: Justice Lucy Glenn
Heard on: December 5, 2014 and January 12, 2015
Reasons for Judgment released on: April 14, 2015
Counsel
Paula Deboer — counsel for the applicant society
Paul Watson — counsel for the father
No appearance by or on behalf of the mother or the Paternal Step-Grandfather, even though served with notice
Judgment
Glenn J.:
[1] Summary Judgment Motion
This is a Summary Judgment motion arising out of a protection application brought by the Society with regards to the child, K. who was born in 2008. The Society asks that this child be made a Crown ward with no access to the respondents, that being the mother, the father or the paternal step-grandfather.
[2] Respondents' Positions
The mother and the paternal step-grandfather are in default and did not present a plan for the care of the child. The father was represented by counsel, presented a plan that the child be placed in his care and argued that in the alternative, he wanted to have access to the child if he were made a Crown ward.
[3] Father's Plan of Care
The father's plan is very sparingly set out in his plan of care – form 33B.1. He states that the child would come to live with him and his current partner. In response to the question on this form as to what support services he would be using for the child, he stated that "I will utilize any support services that the Society requests to assist K. with his autism and special needs including speech therapy, other therapies and special support services through the school system to address his needs." He also set out in his plan that his partner and his father (who was not named) will be his support people in caring for the child. He went on to state that if he were working, his partner would care for the child. In answer to the question as to why this plan would be in the child's best interest, the father answered that "it is in K.'s best interest to be returned to my care. I can and will provide a loving home for K.."
[4] Uncontested Evidence
There was uncontested evidence filed in the Summary Judgment motion materials that established the following facts:
[5] Father's History of Custody and Care
In April of 2009, while the father was still in high school, he was granted custody of K.. Because of the concerns of the Society, in June of 2010 he signed an agreement that the paternal grandmother would share joint custody of the child with him, with primary care being with the grandmother. The father began living with the paternal grandmother and step-grandfather, however he claimed in his evidence that he provided for the primary care of the child because of the paternal mother's ill health until the summer of 2011 when her health improved and he moved out of her home, leaving the child in her care. In spite of his move, he claimed that he continued to go to his mother's house for 5 or 6 hours a day to care for the child until June of 2012 when he moved to another town. The level of care given by him to the child before June of 2012 was not contested by the Society, though clearly the child has not lived with the father since June of 2012 and the father has not had the independent care of the child since June 14, 2010.
[6] Commencement of Protection Proceedings
On November 29, 2012, the paternal grandmother suddenly passed away and because of concerns about the ability of the paternal step-grandfather to carry on with the care of the child on his own, a child protection application was commenced. On December 11, 2012 this court made a without prejudice order placing the child in the care of the Society where he has remained since that time.
[7] Mother and Step-Grandfather's Involvement
The mother has not had any involvement with or access to the child since he was approximately six months old and there was no evidence that the paternal step-grandfather has any ongoing involvement with the child.
[8] Child's Special Needs
The child has been assessed by Dr. Baker as having special needs and being developmentally delayed. He is described as having a mild global deficit in his intellectual development and will require a slower paced repetitive instruction with much structure both at home and at school. Specialized services are in place for him currently.
[9] Kinship Placement Exploration
The Society has explored four potential kinship placements for K., two of which were not approved by the Society and two of which were withdrawn. There are no other known kinship options at this time that are being pursued in this matter outside of the father's proposed plan.
[10] Past Parenting Issues
Past parenting concerns related to the father and his partner: The past parenting concerns set out below were not disputed during the Summary Judgment motion.
[11] Father's Access History
Since the commencement of this application, the father has only had day-time supervised access with the child lasting for short periods of time.
[12] Father's Partner as Caregiver
If the father were successful in advancing his plan for the child, one would need to consider not only his parenting ability but also that of his partner on whom he clearly intends to rely since she would be child's caregiver while the father was at work.
[13] Father's Partner's Children
The father's partner has a child, I., born in 2010 resulting from a former relationship along with two additional children resulting from her relationship with the father, namely R., born in 2012 and L. born in 2014. All three of these children have been the subject of protection proceedings which resulted in their being removed from the care of the father and his partner. Indeed, R. and L. were apprehended at birth and have never been in their care.
[14] June 7, 2013 Protection Order
The protection proceeding involving I. and R. was concluded on June 7, 2013. On that date this court ordered that those children would be placed in the custody of the maternal aunt and uncle. Although the father and his partner received unsupervised access to these children, the access is limited to a minimum of two visits per month for approximately two hours per visit.
[15] Grounds for Protection – I. and R.
The grounds for protection pertaining to I. and R., as established by the June 7, 2013 order were under Section 37(2)(b)(ii) of the Child and Family Services Act (hereinafter called the CFSA).
[16] Factual Underpinning of June 7, 2013 Order
The factual underpinning articulated by the court as it related to the father and his partner was as follows:
a. The partner had not had independent care of I. since his birth.
b. The partner voluntarily placed I. in the care of her sister on June 20, 2011.
c. The partner had been noted in default and had not participated in the proceeding nor had she put forward a plan for the care of I..
d. The father did not have the child, K. (who is the child in our application) in his care. Although he had been granted sole custody of K. on April 14, 2009 under the Children's Law Reform Act, on June 14, 2010 (when he would have been about age 18) he entered into an agreement with his mother and the Society that K. would be in the joint custody of himself and his mother with K. residing in the primary care of his mother.
e. As a teenager, the father was unable to parent the child independently and subsequently he moved out of his mother's home leaving the child in the care of his mother.
[17] Dr. McGrory's Parental Capacity Assessment
The June 7, 2013 order also articulated the following conclusion of Dr. McGrory in the Parental Capacity Assessment that he completed on both the father and his partner dated January 18, 2013:
Both parents indicated a desire to assume care of I. and R. However there appeared to be several concerns which would likely impact upon their proposed plans. It did not appear that the partner had demonstrated the requisite levels of commitment and involvement, particularly as it pertained to I.. She had never acted in a full-time caregiving role and, in Dr. McGrory's opinion, had not asserted herself to do so. She appeared to be more comfortable in a supportive role with I., allowing the aunt and uncle to provide primary care. The same concern could be said about the father as it pertained to R. and his contact and involvement with his son. The father and his partner were young parents and their relationship appeared to reflect their immaturity. Relationship instability and conflict would have a significant negative impact upon children in their care. Further, there was a concern that the parents might be distracted from the primary tasks of caregiving by adult issues. The father and his partner had also demonstrated difficulty regarding transience and instability in terms of housing. Dr. McGrory identified that they were young and inexperienced parents and stated that they would be overwhelmed in providing primary care to an infant or young child. Dr. McGrory did identify, however that this couple did not appear to exhibit serious emotional difficulties.
[18] Placement of I. and R.
As a result of these findings, the Court placed these children in the custody of the maternal aunt and uncle.
[19] Further Findings from Dr. McGrory's Report
On further reading this report it is also noteworthy that Dr. McGrory also concluded that he could not recommend that either I. or R. be placed in the care of the father and his partner (which was consistent with the outcome of the protection proceeding several months later). It is clear that Dr. McGrory was concerned about the lack of commitment shown by the father and his partner to their children. He also articulated concerns regarding their arguing, conflict and separations which would have a significant negative impact upon children in their care. He identified that they tended to lack parenting knowledge and sophistication and indicated that they would both be overwhelmed in providing primary care to an infant or young child. In that report, the father's cognitive skills were assessed and he was identified as a slow learner.
[20] June 19, 2014 Protection Order – Child L.
As mentioned above, the father and his partner went on to have another child, L., born in 2014 who was apprehended at birth and ultimately also placed in the custody of her maternal aunt and uncle pursuant to a recent protection order of this court dated June 19, 2014. The father and his partner were given the same amount of access to this child as with I. and R.. The grounds for protection were again determined to be pursuant to section 37(2)(b)(ii) of the CFSA. The factual underpinning for that order referenced the facts that were relied on in the above mentioned order of June 7, 2013 and in addition articulated that:
a. When the partner was pregnant with L., her doctor had identified concerns regarding her lack of consistent follow through on prenatal care.
b. The father and his partner acknowledged that there had been little progress in addressing any of the protection concerns identified in the final order of June 7, 2013 including continued transience, capacity issues or access to their children.
[21] Loss of Care of All Children
Accordingly, both the father and his partner have lost the care of all of the other children they have ever had.
[22] Summary Judgment Test – Family Law Rules Rule 16
Rule 16 of the Family Law Rules pertaining to Summary Judgment motions contains the following sub rules:
a. Sub rule (4) states: The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
b. Sub rule (4.1) states: In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence specific facts showing that there is a genuine issue for trial.
c. Sub rule (6) states: If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[23] Father's Failure to Dispute Evidence
On reviewing the father's evidence it was clear that he did not dispute any of the matters that have been outlined above. Further, he did not provide any evidence that might suggest that he or his partner had made any improvements in their commitment or ability to care for a child since the date that the earlier determinations were made which resulted in their having their children taken from their care.
[24] Standard for Summary Judgment in Child Protection
I am mindful of the wisdom of earlier court decisions regarding the type of evidence that is required for a respondent in a Summary Judgment motion to establish that a triable issue exists. Respondents must provide evidence of specific fact showing that there is a genuine issue for trial or risk losing. CAS Toronto v. K.T., 2000 O.J. No. 4736. Further, they must put their best foot forward when providing their evidence or risk losing. Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a Summary Judgment Motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the Motion. Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.
[25] Father's Disputed Issues
The only three issues disputed by the father in his materials and/or submissions related to:
a. whether he had been inconsistent in attending access visits,
b. whether he continued to need counselling for anger issues and
c. whether he should continue to have access if the child were made a Crown ward.
[26] Consistency of Father's Access
The question of consistency of the father's access speaks directly to his level of commitment to the child. Since the child came into care, the father has only had daytime supervised visits which lasted a couple of hours. Even though the father had an order for access to K., during the 18-month period between July of 2013 and the end of 2014, he only chose to attend eleven access visits with his child. He had no contact with him between August 29, 2013 and December 20, 2013. Then there was a similar gap in his access between December 20, 2013 and April 25, 2014. In the year 2014, he only had seven visits with his child. These facts were not disputed by the father. Further there is no indication in the affidavit materials that his partner was ever involved in the access visits.
[27] Transportation and Work Schedule Excuses
It is noted that originally the child had been placed outside Chatham-Kent in a foster home in London, Ontario and that the father lived in Tilbury Ontario. Even though one could imagine that there might have been greater effort needed for the father to travel from Tilbury to London for access visits, transportation did not appear to be the significant issue. Rather, the father's response to the fact that he had participated in very few visits with his son was that his working schedule complicated his being able to attend for visits. However, while he claimed that he wanted an access schedule that would accommodate his work schedule, there was no evidence that he ever supplied the Society with this schedule. The practice that evolved was that access would be arranged whenever he asked for it. It was clear from the material filed that every time he asked for a visit, it would be arranged for him in a very timely fashion.
[28] Cancellation of Visits
The father's counsel argued that his visits were inconsistent because his visits would be cancelled at the last minute, but his affidavit material was not detailed in this regard, and the responding evidence supplied by the Society made clear that this excuse was simply unsustainable. On the odd occasion that a visit could not take place as planned, a makeup visit was always immediately rearranged. In short, when he wanted a visit, one would be arranged for him.
[29] Local Access Arrangement and Continued Inconsistency
By May of 2014, access visits became supervised locally in Chatham by his partner's sister (who has the custody of their three other children as referred to above). In his submissions, counsel for the father complained that the Society relied on the father to check the aunt's availability before an access visit was arranged. He suggested that this was a barrier to access and should have been the responsibility of the Society. One must remember that these visits were being arranged to take place at this kin home to accommodate the father. In the circumstances, I do not think it is too much to ask that the father would contact the aunt first to determine her availability before a visit was arranged. During the seven months between May 24, 2014 and the end of December of 2014, there were only six visits requested by the father. Further, there was almost a two month unexplained gap in his attendance at visits between September 20, 2014 and November 15, 2014.
[30] Lack of Commitment
The real issue that the father failed to address in his affidavit material was the fact that he did not ask for more access and that there were large unexplained gaps between his visits. Given the special needs of the child, it is clear that he would need caregivers who would be committed to providing for these needs. However it would appear that commitment is in short supply when it comes to the father. It is also clear from the earlier protection proceedings involving the father's partner that she also failed to have the necessary commitment to parent her own children.
[31] Insufficient Evidence on Access Consistency
In any case, there was insufficient evidence filed by the father to support a finding by the court that there was a triable issue relating to the father's practise of his access rights.
[32] Father's Anger Issues
The Parental Capacity Assessment and the earlier protection proceedings involving the father suggested that there were concerns regarding the father's history of anger difficulties. Further, the Society claimed that the father acknowledged to them that he had a history of anger management issues but that he had not provided any documentation to support that he had completed anger management counseling.
[33] Anger Management – Not Determinative
The father argued that he completed anger management counselling in the past and that there is no recent evidence that this is a current protection problem. I would agree that there is a lack of evidence to suggest that his anger issues continue as a live concern. However a trial on the issue of whether or not the father now needs to enroll in anger management counselling will not make any difference to the outcome of this case since the other issues that have already been discussed are what will determine the outcome.
[34] Conclusion on Summary Judgment
In my view there is no genuine issue requiring a trial as to the determination that the child is in need of protection. Further, it is clear that the father's plan for the care of the child is so clearly deficient that there is no realistic chance of success for his plan. As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969: "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."
[35] Findings of Protection
I find that this child is in need of protection under s. 37(2)(b)(ii) and (g.1) of the CFSA. The reasons for this finding are:
a. Two separate protection proceedings have already taken place with respect to the father and his partner, (on whom he proposes to rely for assistance should the child be placed with him). Orders of this court on June 7, 2013 and June 19, 2014 made findings of protection and articulated factual underpinning pertaining to the father and his partner. There is no evidence that the concerns raised by these proceedings have been addressed. A major protection issue raised in these earlier proceedings that equally pertained to both the father and his partner was that they lacked the commitment to care for their children.
b. As a result of these proceedings, all of the other children of the father and his partner have been permanently removed from the father and his partner. Their ongoing access with these children is defined as a minimum of two visits per month for approximately two hours per visit.
c. The child in this case has high needs and will require a committed caregiver with sophisticated parenting skills who understands the child's needs and will insure that those needs are met. His caregiver will also need to engage with specialized services in order to assist with his developmental needs.
d. The father lacks the commitment required to care for this child. He has not had the independent care of the child since 2010 when he was a teenager. The only access that he has had with the child since the start of this proceeding in December of 2012 has been day-time visits for short periods of time which have been supervised. In spite of him having a right to access, he chose to see the child very infrequently with large unexplained gaps in time when he did not see the child at all.
[36] Consideration of Competing Plans
Given the factual underpinning for the finding of protection, it is obvious that the father's plan that he would assume the care of the child is not acceptable. The suggestion that his partner might assist him in caring for this needy child is likewise unacceptable. They both lacked the commitment and parenting ability to care for their other children and the father has continued during the course of this proceeding to demonstrate a lack of commitment to K.. Further, the partner and the paternal grandfather haven't even provided an affidavit confirming their desire to support the father in the care of this child which represents a serious gap in the father's plan. It is beyond the realm of possibility that the father's plan would succeed at a trial of this issue.
[37] Society's Plan
Given that the father's plan is not an option, the only other option is the plan proposed by the Society.
[38] Crown Ward Order
Accordingly there will be an order that the Child will be made a Ward of the Crown.
[39] Access Issue – Alternative Argument
Having determined that the child should be made a Ward of the Crown, the father has asked as an alternative argument that I consider giving him ongoing access to the child. He argued that it was in the child's best interests that the child maintain contact not just with himself but also with the his half-siblings who the child currently sees at access visits at the aunt's home, since these half-siblings are in the custody of the aunt. It was also suggested that if his right to access were terminated the child would become disconnected not only from the father and his half-siblings but also the paternal grandfather and paternal aunt who also attend visits at times. He argued that this was an issue that required a trial.
[40] Father's Access Track Record
I would observe that it is questionable the extent to which the father would be able to keep K. connected with his half-siblings given the father's dreadful access attendance track record with K.. One must also remember that the father's right to access with his other children is already very limited according to the existing court orders.
[41] Access Framework for Crown Wards
Access is dealt with in the CFSA under sections 58 and 59. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2) creates a presumption against access where the child is a Crown Ward and goes on to create a two part test under section 59(2.1) which requires one to show that the relationship between the parent and child is beneficial and meaningful to the child and also that access would not impair possibility of adoption. The rebuttable presumption under s. 59(2.1) is conjunctive, and in this case the father would have to rebut both elements of s. 59(2.1) or the access cannot be ordered.
[42] Best Interests Test
Even if a parent can rebut the presumption, it does not automatically mean that an access order will be made. The person seeking the access still has to show that the proposed access is in the child's best interests under s. 58(1). 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.
[43] Beneficial and Meaningful Relationship Test
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., [2004] O.J. No. 2872 is frequently cited when considering the meaning of the words "beneficial and meaningful":
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.
[44] Standard for Beneficial and Meaningful Relationship
Another case suggested that the parents have to show more than just that a child has a good time during visits. Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344. More is required than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058.
[45] Father's Evidence on Relationship Quality
The only evidence that the father offered about the quality of his relationship with the child was that whenever he exercised access with the child, the visits "went very well" and that "he and the child were interactive and affectionate". The evidence of the Society was that the child enjoyed his visits with his family and that he looked forward to them. That was the sum-total of the evidence regarding how beneficial or meaningful the visits were to child. There certainly was no convincing evidence to suggest that the child derived the level of advantage and significance from his relationship with his father that is contemplated and required by s. 59(2.1) of the act.
[46] Father Failed to Rebut Presumption – First Prong
Counsel for the father suggested if there was a trial of this issue he could go into more detail on this issue. Of course, given that this was a Summary Judgment motion, it was up to the father to put his best foot forward in providing the evidence in his materials that would support his claim that the child's relationship with him was beneficial and meaningful. Based on the lack of supporting evidence that has been supplied by the father I find that he has not rebutted this presumption with regards to this aspect of the test.
[47] Second Prong of Test – Impairment of Adoptability
Given this determination, it is not necessary to consider the second part of the test and clearly there is no triable issue left for consideration. However, I will make the following comments since I do not believe that the father would have succeeded on the second part of the test either.
[48] Legislative Intent Regarding Adoption
It is clear from the legislation that the intent of the legislature is that the best interests of children who cannot be returned to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order.
[49] Child's Adoptability
In this case, it is noted that the foster placement where the child has been residing for the last year and one-half had not indicated if they were prepared to adopt him at the time this matter was argued. Further, the father argued that given K.'s age and developmental delays, he would be unadoptable.
[50] Father's Unsupported Claim of Unadoptability
If he were unadoptable, of course, the second part of the test would not present a hurdle to the father. However the father provided no supporting evidence or statistics as to why he would suggest that his son would be unadoptable.
[51] Burden on Parent Seeking Access
The second element of the test under s. 59(2.1) places a burden on the person seeking access to show that an access order would not impair a child's future abilities to be adopted. CCAS v. L.S. & W.D., 2011 ONSC 5850: 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 (par. 427). Further, there is no obligation on the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family. See Children's Aid Society of Niagara Region v. J.C., S.B. and R.R..
[52] Society's Evidence on Adoptability
In our case the Society acknowledged that this child had significant cognitive delays however they provided affidavit evidence sworn by their adoption worker who believed him to be an adoptable child. She stated that it had been her experience that there were a variety of adoptive applicants with an array of skills and experiences that might provide an excellent match for this child and that children with needs greater than those of this child's had been successfully placed using the various resources available to the Society.
[53] Father's Arguments on Adoption and Access
The father also argued that if an access order was in place, it would not interfere with an adoption. The search for adoption could continue and if and when it was successful, the father would be provided with notice in the usual course under s.145.1.1 of the CFSA at which time he could apply for an openness order under s.145.1.2 of the CFSA. He suggested that he was not a difficult parent to get along with and that in the past he had been very respectful of the Society, the foster family and the current access supervisor, which indeed appears to be true enough. Even though the father's access track record was abysmal, when he requested access, he did follow through with visits. He argued that the child was old enough to have memories of his father and that this should support the father having ongoing access visits.
[54] Aunt's Support for Sibling Contact
He also suggested that there was no down side to making such an access order especially since the Society was suggesting that it would be prepared to attempt to negotiate an openness agreement with a prospective adoptive family before an adoption. Further, the aunt had expressed the desire to continue to have K.'s half-siblings continue to have access with him.
[55] Litigation Risk and Deterrent Effect
It is one thing for the Society to say that they would be willing to attempt to negotiate an openness agreement with the adoptive parents. In such a scenario if the adoptive parents were not agreeable, then quite possibly that would be the end of the question. However it is quite another thing to set in process the litigation that would likely flow from the making of an access order. If this were to happen, the potential adoptive parents are faced with waiting while litigation regarding a potential openness order winds its way through the court system or walking away altogether. And, the fear is that they might just walk away.
[56] Deterrent Effect on Prospective Adoptive Parents
In Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, Justice Penny Jones wrote:
Recent cases have considered potential reasons why courts might reject claims for access on the second prong of the test. 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. 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.
[57] Adoptive Parents' Views on Openness Orders
Further, these new provisions in the CFSA set out that the adoptive parents' views about an openness order are only a consideration, but not determinative.
[58] New Dynamics in Adoption Process
The recent amendments to the CFSA which allow for these openness orders have created new dynamics in the adoption process and have many implications which must be considered by a court when considering if a parent can satisfy the second part of the test in section 59(2.1).
[59] Final Determination on Access
The reality is that while this little boy may be adoptable, he is also an older child with developmental delays. To make an access order in favour of a father (especially one who isn't committed to visits in the first place), would likely reduce an already small pool of adoptive recruits. This child has been in care for close to two years and badly needs to find a permanent home as soon as possible. In my view an access order would impair this child's future opportunities for adoption and no order for access should be made.
Order
The child will be made a Ward of the Crown and placed in the care of the said Society.
There will be no order for access by the respondents to the child.
Released: April 14, 2015
Signed: Justice Lucy Glenn