Court File and Parties

Court File Number: 4/2015 Date: 2015-07-30 Ontario Court of Justice At Orangeville

Between: Bruce Grey Child and Family Services Applicant

and

R.G. Respondent

Before: Justice B. E. Pugsley

Heard: July 22nd, 2015

Released: July 30th, 2015

NOTICE

THIS FILE IS SUBJECT TO A SEALING ORDER MADE HEREIN

WARNING: THIS FILE IS SUBJECT TO RESTRICTIONS ON PUBLICATION CONTAINED IN ONE OR MORE OF SECTIONS 45(7), 45(8) AND OR 45(9) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• Mr. Christopher Hutton for Applicant
• Mr. Larry Haskell for Respondent
• Ms. Caterina Tempesta for Office of the Children's Lawyer

Endorsement

Background and Facts

[1] This is an Application by Bruce Grey Child and Family Services for direction from the Court concerning an Adoption Order made by me on March 20th, 2013.

[2] The facts summarised below are found in the limited material filed by the parties hereto. No access to the original Grey County protection file or the Dufferin County adoption file has yet been affected.

[3] A.G., now seven years of age, is a former ward of the Applicant. She was placed in the care of the Respondent as a foster parent in March of 2010 when she was just under two years of age. A.G.'s older half sibling, D.R., also lived in the care of the Respondent as his foster parent from that time until February of 2011.

[4] On February 14th, 2011, a final order was made in the Ontario Court of Justice at Owen Sound making A.G. a Crown ward and placing D.R. with a parent under supervision. At that point these two siblings commenced living separately. A.G. was just under three years of age and continued to live with the Respondent, and D.R. who had recently turned five years of age started to live with his biological father (not A.G.'s biological father).

[5] The February 14th, 2011, final order provided for no access by a parent to A.G.

[6] The February 14th, 2011, final order provided however that A.G. have "reasonable" access with D.R., and to "her other siblings", to be exercised in the discretion of the Applicant.

[7] Access between A.G. and D.R. took place pursuant to the February 14th, 2011, order on three occasions according to the Respondent, who still had care of A.G. The Applicant sets out two visits. The children last saw each other in November of 2012. A.G. was four and a half at that time and D.R. was nearly eight.

[8] As noted, the February 14th, 2011, final order also provided that A.G. have access to "her other siblings". None of this class of persons is named in the order. It is unclear on this record what specific persons come under this class of individuals. At the time of the order A.G.'s biological mother had given birth to A.G., D.R. and eight other children. Five of those other eight children have themselves been adopted. Some are now adults. The record does not disclose what other siblings, if any, A.G. may have on her biological father's side of the family.

[9] A.G.'s biological mother appealed the February 14th, 2011, final order. Her appeal was dismissed in October of 2012. The Applicant and the Respondent actively started to plan for the Respondent's adoption of A.G.

[10] Meanwhile, D.R. came back into the care of the Applicant in May of 2012. Ultimately he was placed in the care of the children's biological mother under a supervision order. That order ended in September of 2014. There is no active CAS file involving D.R. and he continues to reside with his mother.

Legislative Changes and Compliance Failures

[11] Between February of 2011 and the fall of that year the adoption provisions of the Child and Family Services Act RSO 1990 c. C-11 (the Act) were amended inter alia to modify the adoption openness provisions of the Act (S.O. 2011 c. 12). For example, Section 143 (termination of access orders under Part III of the Act) was amended, and Sections 145.1.1 and 145.1.2 were added to the Act. The amendments were assented to on June 1st, 2011, and came into effect on September 1st, 2011.

[12] The 2011 amendments required that the Applicant take certain steps before placing a Crown ward for adoption when an access order existed for that Crown ward. Specifically, where the Applicant intends to place a Crown ward for adoption, Section 145.1.1 requires that the Applicant give notice to a person who has been granted an access order and a person who is the subject of an access order. Section 145.1.2 gives those persons thirty days to apply for an openness order. Section 143 terminates any access order at the moment a Crown ward is placed for adoption.

[13] A practice memorandum from the Ministry of Children and Youth Services to the Regional Directors which was then passed on to the individual child welfare agencies in each municipality set up a protocol whereby notice would be sent to the Office of the Children's Lawyer (the "OCL") in cases where access by or in favour of a minor was engaged.

[14] On October 24th, 2012, A.G. was placed on Adoption Probation with the Respondent.

[15] Before placing A.G. for adoption, the Applicant did not give the required notice under Section 145.1.1 of the Act to anyone, notwithstanding the legal requirement to do so. Specifically, the Applicant did not give the required notice to the OCL with respect to the access order involving A.G. and D.R. The Applicant made no apparent effort to consider who else might be entitled to such a notice under the broad provision for access by A.G. to "her other siblings" before placing A.G. with the Respondent.

[16] Notice not having been given by the Applicant, no person entitled to seek an openness order was made aware of the fact of the placement for adoption and no one therefore applied under Section 145.1.2 of the Act for such an order.

[17] The operation of Section 143 of the Act terminated the access order set out in the February 14th, 2011, final order, at the moment when A.G. was placed with the Respondent for adoption.

[18] On March 20th, 2013, an adoption application was before me for consideration at Orangeville. The Applicant did not state that there were any access orders applicable to the child. I signed a final adoption order whereby A.G. became the daughter of the Respondent that day.

[19] In November of 2013 D.R.'s own OCL counsel raised the issue of the lack of compliance with the Act with the Applicant. With the help of the OCL the Applicant attempted to negotiate an openness agreement with the Respondent. The OCL appointed two separate counsel to advocate in the negotiation process on behalf of A.G. and D.R. As shown in her material, the Respondent was concerned that A.G. would be confused by the sudden reappearance of D.R. in her life, and suspected that the biological mother of A.G. and D.R., with who D.R. was by then living would use D.R.'s access right to get around the fact that she herself had no right of access to A.G. In the end no agreement was reached.

[20] There is no suggestion that the Applicant's mistakes were deliberate. Nonetheless, those mistakes have created far-ranging complications, costs and distress.

[21] Failing a curative agreement regarding openness, this Application was brought.

Positions of the Parties

[22] The Applicant moves for direction from the court on how to redress its failure to obey the law. It submits that jurisdiction exists to allow the issue of openness to be itself reopened to allow adjudication on the merits of the issue of continued contact between A.G. and D.R., and A.G.'s "other siblings".

[23] The OCL supports the Applicant's request to reopen the issue of openness for argument on the merits, and submits that jurisdiction exists to allow such a reconsideration to take place. It would seek to have OCL counsel formally appointed to advocate for each of A.G. and D.R., and potentially for A.G.'s "other siblings". Should I find that no jurisdiction exists here to make the order sought, the OCL would then seek to give notice of an application under the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) Sections 7 and 15, to challenge the constitutionality of the adoption finality provisions set out in Section 157 of the Act, and/or the time limitations on an appeal established under Section 156.

[24] The Respondent resists the application, submitting that the adoption has been completed and that there is no jurisdiction to revisit any failure to comply with the law behind the final adoption order made in March of 2013. Notably the Respondent points to Section 157 of the Act which, it is submitted, forcibly states the finality of an adoption order. The Respondent questions the standing of the Applicant and the OCL here, noting that the Applicant does not allege that A.G. is a child in need of protection, an alleged pre-condition to bring on an application.

Standing and Jurisdiction Issues

[25] The Applicant has standing in my view to seek the direction of the court with regard to an order made at their suit based on a mistake as to process or fact. Having standing to appear is not the same as the court deciding that jurisdiction exists here as submitted.

[26] The OCL was permitted to appear here based on my order made on May 13th, 2015. Given that the OCL has specific expertise in openness orders, and a role in the making and modification of such orders the OCL adds value and perspective to my consideration of the issue of jurisdiction here. That said, I expressly limited the OCL role at this time to making submissions on the issue of jurisdiction, and did not appoint individual counsel for A.G. and D.R. Frankly before the issue of jurisdiction was dealt with I did not want A.G. nor D.R. to be approached as to their potential relationship to their sibling at the risk of confusion and/or raised expectations of access should no jurisdiction be found.

[27] On May 13th, 2015, I also defined the issue to be determined today: to paraphrase, does the court have the jurisdiction to reopen the final adoption order to address the failure of the agency to afford A.G. and D.R. (and possibly others) their right at law to seek an openness order that survives the adoption? The issue of whether such an openness order or orders should actually be made is not before me today and abides the determination of whether the possibility still exists to consider such an application.

Proposed Routes to Jurisdiction

[28] The Applicant submits that the issue here is whether an application for an openness order can be made after a final adoption order. It notes that there is a gap in the Act because the legislation does not contemplate that an agency might not comply with the notice provisions set out in Section 145.1.1. The legislation is therefore silent on any remedy if that should occur by mistake or design. This requires that the court consider other avenues to give effect to the clear requirement that A.G. and D.R. (and others) be told that their respective access rights are about to be extinguished by Section 143 of the Act unless they ask the court to consider making an openness order under the timeframe established by Section 145.1.2.

[29] The Applicant submits that there are two routes that the court could use to bring the access issue back before the court even after the final adoption order has been made.

[30] First, the Applicant submits that the court has the jurisdiction to order that the Applicant serve the necessary Section 145.1.1 notice nunc pro tunc. In other words, act as if the Applicant had complied with the law, turn back the clock to sometime before the moment when the child was placed with the Respondent for adoption, serve the required notices and await any Section 145.1.2 application for an openness order. The thirty day limit provided for in Section 145.1.2 would have to be factored in. It is submitted that pleadings can be part of a nunc pro tunc order.

[31] In support of this route the Applicant submits that inherently an adoption order and an openness order are different. The openness order is a collateral order. The legislation itself demonstrates this by allowing openness orders to be modified or ended after the adoption has been completed. An adoption placement, or even a final order, does not foreclose the route suggested to reopen the openness process nunc pro tunc.

[32] Second, the Applicant submits that I can set aside the final adoption order, make an order requiring that the Applicant comply with the statute, and then, eventually after the issue of any openness order has been determined, make a new adoption order nunc pro tunc backdated to the date of the original order: March 20th, 2013. To exercise this path to jurisdiction the court would need to find that the finality provisions of Section 157 of the Act do not apply because the adoption order itself was made without jurisdiction in the first place. It is submitted that two routes lie towards a setting aside of the adoption order: first, the application of Rule 25(19) of the Family Law Rules, combined with the application of Rule 38.11 of the Rules of Civil Procedure (applicable via the application of Rule 1(7) of the Family Law Rules); and, second, the application of the court's inherent jurisdiction to control its own process.

[33] This latter route is predicated on the ability of a court to correct errors made in orders due to mistake or fraud. The adoption order was made on the mistaken belief that the law had been complied with by the Applicant. The order can therefore be set aside to correct that mistake or fraud.

[34] The OCL submits that there are three routes under which the court could have jurisdiction to redress the Applicant's mistake. The routes parallel those suggested by the Applicant. First, an openness order can be made even after an adoption order as they are separate orders. Second, the court can order nunc pro tunc that the children may bring applications for openness orders back-dated to a date before the adoption order. Third, the adoption order may be set aside, the openness issues dealt with, and a new adoption order made afterwards.

[35] The OCL notes that if efforts are not made to redress the mistake A.G., D.R., and the other siblings, will have no legal recourse to seek to uphold the access rights granted by the February 14th, 2011, Crown wardship order.

[36] The Respondent submits that the legislation is clear: adoption orders are final. The means suggested by the Applicant and the OCL are attempts to circumvent the clear application of the law, and in any event there is no basis for either body to bring this matter back before the court under the Rules or their own legislative mandate. The court has lost jurisdiction over the openness issue. A mistake was made but there is no legal way to redress that mistake within the current application which is based upon the Act. Alternatively, it is suggested that the Children's Law Reform Act may permit a fresh access application on behalf of A.G. or D.R. by someone with standing to bring such an application.

Caselaw and Legal Analysis

[37] The Applicant and the OCL have filed legal briefs. All agree that there is no caselaw directly on point available as of the argument of this application. There have been other cases where an agency has made mistakes with regard to the openness process. The OCL has assisted by mediating a solution to correct the mistakes in several cases. I am told that a consent order was recently made on the issue of the reopening suggested by the Applicant and the OCL here, but no details of the decision are currently available, nor whether the presiding justice went behind the parties' consent to consider the jurisdictional issue that the Respondent has raised here.

Policy Considerations

[38] The effects of the Applicant's mistake here are apparent from the facts agreed to by the parties. A.G. and D.R., and perhaps many more unnamed parties, were provided an access link by the February 14th, 2011, Crown wardship order, albeit in the discretion of the Applicant. The access was allowed for in the order, but it seems clear that the Applicant's exercise of that discretion was infrequent and that one party to the access order (A.G.) was very young at the time. Nonetheless the access ordered by the court at trial has been extinguished, and extinguished through the mistake of the Applicant.

[39] The Applicant and the OCL seek to have the court set back the clock to a time before the adoption order such that the mistake can be corrected.

[40] The effect of the course of action urged upon the court by the Applicant and the OCL from those parties' perspective would not initially determine the issue of openness, but would allow that determination to take place on the merits.

[41] The effect of that course of action on the Respondent from her perspective would be to reopen the very creation of her family and potentially place A.G. in jeopardy.

[42] It is clear that there are two policy issues here that are at odds.

[43] First, the overall scheme under which an adoption placement, and subsequent order, creates a new family unit, expunging the past historical family unit. This policy goal could be said to be that the new family ought not to be undermined by a link to the old once a certain point has been passed: the placement for adoption. The reference to finality in Section 157(1) of the Act pointed to by the Respondent illustrates this policy goal. No appeal or review under any circumstances may take place after the expiration of the time limit set out in the Act.

[44] This policy goal has not gone unchanged over the years. Even before the amendments to the Act already referenced, courts had acted from time to time to revisit access after a final adoption order where fairness required: see for example Catholic Children's Aid Society of Metropolitan Toronto v. P.(M.A.R.), [1995] O.J. 2227 (Ontario Court of Appeal). Adult adoptees sometimes sought to look behind the rigid secrecy provisions of the past using old and new technology to locate birth parents. Policy changes allowed for the creation of the disclosure provisions of the adoption registry. The policy change created by the possibility of openness agreements and orders has also acted to refine and reshape what had formerly been a rigid and buttressed wall of privacy. The creation first of openness agreements, and then in 2011, of orders for openness – not relying on the agreement of the parties - demonstrated that a view of the act of an adoption as a wall never to be breached is no longer current.

[45] Second, the principals of fundamental justice to which every litigant is entitled to. This policy goal invokes and balances fairness and justice. In the instant case the court determining Crown wardship at trial ordered that A.G. ought to have access to her brother D.R. The law changed between the date of that order and the placement of A.G. for adoption. The new legal requirement provided that before an adoption placement the legal representatives of these two children could apply to continue the access that was about to be terminated by the operation of Section 143 of the Act. The mistake made by the Applicant frustrated that order without according the children the right to make that application. The very process established by statute to test whether access ought to be continued after adoption placement via an openness order was frustrated.

[46] How then to reconcile these competing policy provisions here? In my view on the facts of this case the answer is that the rigidity implied by Sections 143 and 157 of the Act cannot be allowed to frustrate the fundamental right to fairness owed to A.G. and her brother. To say otherwise would be unfair in the extreme.

[47] As already observed, the former view that in all cases adoption secrecy makes events after the adoption placement and here, the final order, final and protected is an idea that has been eroded consistently over the last decade. The law has specifically provided a process by which Crown wardship access orders can be continued as openness orders after an adoption even over the objection of a party. Those orders can themselves be varied or terminated after an adoption. Clearly the law recognises that openness can pierce the adoption veil. The operation of Section 143 of the Act ends the access order made at the time of Crown wardship, but the statute replaces that access with the openness scheme – in reality another form of access, but subject to a second opportunity for the parties to advocate before the court (if desired) as to whether access ought to continue, and how it ought to continue should an openness order be made.

[48] In other words in the context of this case, the openness scheme is a last clear chance to determine the value to the child of the post-wardship access before the door is closed by the adoption placement under Section 143. From the standpoint of a potential adoptive parent it is also a last clear chance to understand the terms that could be attached to an adoption before the placement decision is made.

[49] The Applicant's mistake frustrated this carefully crafted legislative policy. If the law had been followed all the parties would have been able to order their lives accordingly, albeit after the passage of some further time investment. In my view it is simply not right nor just to say now, too bad, the finality of the adoption order trumps the fairness fundamentally owed to these children.

[50] The purposes of the Act are established inter alia by Section 1. To paraphrase: "... to promote the best interests, protection and well being of children; ... to consider the least disruptive course of action; ... to respect a child's need for continuity...". This suggests that flexibility in promoting the best interests of a child ought to be a governing feature of the process of resolving the conflicting policies here. Form ought not to be allowed to trump function if it hurts a child's best interests.

[51] In my view the facts of this case do not favour a view that finality ought to succeed in ousting fairness in any event. The Respondent has had a lengthy history in this matter. She was the foster parent of both A.G. and D.R., together. She knew of the Crown wardship access order allowing contact between the children. After the Applicant's mistake was discovered she was part of short-lived discussions concerning an openness agreement. In submission the Respondent noted that a Children's Law Reform Act application could be considered with regard to access. This suggests that the Respondent does not dismiss the issue of access fully. In several ways then the Respondent does not stand in the shoes of a third party adoptive parent whose first contact with their child happened during the adoption placement and who might be caught by surprise by the effects of a mistake such as that made by the Applicant, and who might then reconsider their decision to adopt. The Respondent is a proud mother of A.G., but also knows the background of this matter. This too makes the piercing of the adoption veil less problematic.

Court's Reasoning on Jurisdiction

[52] I conclude that the proper course of action here is to allow the clock to be temporarily reset to the point before the Applicant's mistake was made.

[53] I do not however agree that the unwinding of the Applicant's error can simply be accomplished in the manner suggested by the Applicant's first proposed path. "Nunc pro tunc" orders (literally: "now for then" – the substitution of an act taken later as if it had been made at the earlier time) are best suited to correct slips or oversights of a procedural nature. In this regard I note the words used by Madam Justice J. Mackinnon at paragraph 39 in her Endorsement in A.L. v. S.M. and P.C.: "Nunc pro tunc orders are made routinely in connection with administrative, clerical or procedural errors or omissions, but are not suitable for a declaration of status with substantive law significance."

[54] The risk engaged by the broad application of the "nunc pro tunc" principal urged by the Applicant is that it could be used to reopen virtually any prior order, giving rise to the potential for much mischief. A necessary component of any court proceeding is an understanding common to the parties that orders will finally dispose of the issues brought before the court. Only then can the parties order their affairs or consider the appeal of an order.

[55] In this case we are not dealing with an administrative or clerical error: the error here goes to the fundamental basis on which the final adoption order was granted. The placement for adoption, let alone the order, ought not to have happened outside the legislative scheme. The way in my view to find jurisdiction to correct the mistake here is to find that the making of the adoption order itself was flawed and to suspend the operation of that order until the mistake has been remedied. At that point the order itself can be completed, necessarily nunc pro tunc, because the focus then of the corrected order would be essentially procedural in nature – the back dating of the adoption order to the date when it was originally made: March 20th, 2013.

Application of the Family Law Rules

[56] Rule 25(19) of the Family rules allows limited scope to change an order made when the order was made based upon fraud, a mistake, was made without notice, or was made with notice but the notice was inadequate, or needs to be changed because the court did not deal with an issue that was before the court to be dealt with.

[57] Mistakes or errors in law cannot be corrected by resort to Rule 25(19). Alleged errors as to the correctness of the order must be made via an appeal: see Gray v. Rizzi 2011 ONCA 436, [2011] OJ 2563 (OCA). As a corollary therefore, in order to exercise the corrective aspect of the rule the issue must fall within the areas delineated by Rule 25(19)(a) through (e), or if outside the ambit of the Family rules then by reference to the Civil rules.

[58] Rule 25(19)(a): the order was based on fraud. There is no fraud alleged here, nor any basis on this record to allege fraud. Rule 25(19)(a) does not apply.

[59] Rule 25(19)(b): the order was based on a mistake. There was a mistake made that lead to the making of the order – the law was not followed. Notably however the wording of Rule 25(19)(b) states: "(b) [the order] contains a mistake". The adoption order on its face contains no mistake. In fact, all the parties are delighted that the adoption order was made. It was the failed process that is criticised. Rule 25(19)(b) does not apply.

[60] Rule 25(19)(c): a change in the order is needed to deal with a matter that was before the court but which the court did not decide: the issue of the required notice regarding an openness order was not placed before the court. The issue should have been before the court before the adoption was commenced, but the only issue before the court at the time of the adoption was the adoption itself. By operation of Section 143 any access order made by the court on February 14th, 2011, had been ended. The issue of openness could not therefore have been before the court to decide on March 20th, 2013, when the adoption order was made. Rule 25(19)(c) does not apply.

[61] Rule 25(19)(d): the order was made without notice. The order was made without the required notice to A.G., D.R. and others. I conclude that Rule 25(19)(d) is applicable here.

[62] Rule 25(19)(e): the order was made with notice but an affected party was not present because the notice was ineffective. Here the affected party did not attend because the formal notice was not made although required.

[63] It could be argued by a somewhat convoluted process that the Respondent, a party to the adoption order, had some informal notice that the process itself was flawed. She knew that there was an access order made in February of 2011 because access was exercised under that order while A.G. was in her care. Although she had no counsel at that time on this record, she is presumed to have known about the law requiring that formal notice be given to A.G. by the Applicant under Section 145.1.1. A.G. was in her care and she would presumably have known had such notice been given, but it was not. It was not unreasonable however for the Respondent to rely on the Applicant to know and obey the law. The Respondent, of course, was also given notice of the adoption order and was entitled to be present at the signing of that order. Rule 25(19)(e) cannot then apply to the Respondent.

[64] Similarly, at the time of the placement for adoption in October 2012, this record suggests that D.R. was back in the care of the Applicant. He remained either in care or under the supervision of the Applicant until 2014. He had OCL representation, and it was by the effort of OCL counsel that the Applicant's error came to light in 2013 after the adoption order. The Applicant as his caregiver had actual notice of the pending adoption since they were a party to that adoption. The Applicant did not however follow the required procedure set up by the Ministry to formally notify the OCL of the prospective adoption placement of A.G. This process was presumably put into place to provide an independent voice for the children affected by the looming end to an access order.

[65] D.R. and A.G. therefore, being affected parties, had no notice at all. Rule 25(19)(e) cannot apply on these facts.

[66] In my view therefore the proper process here is to apply Rule 25(19)(d) to change the adoption order made on March 20th, 2013.

[67] Rule 25(19) contemplates the changing of an order. What is the nature of the change to be applied to the adoption order? As already observed, the adoption order on its face is not challenged by any party. No one seeks to undo the adoption, only to allow the court to consider whether there ought to be an openness order. Change is not defined in the rules but must take on the normal meaning of the word. Here I accept that "change" can include a suspension of the effectiveness of the order, or, alternatively, the setting aside of the order. Neither form of change is provided for in the Family rules. To effect such a change to the adoption order resort must be had to a process not available in the Family rules.

[68] Rule 1(7) of the Family rules incorporates by reference the use of the Rules of Civil Procedure to assist the court in areas where the Family rules do not adequately cover a matter.

[69] Rule 37.14(2) of the Civil rules allows a court to set aside or vary an order on such terms as are just. Rule 38.11(3) applies the same remedy to judgments. Notably judgments by their nature are final, yet Rule 38.11(3) contemplates the setting aside of a judgment on terms that are just.

[70] I conclude that the operation of Family rules 25(19) and 1(7), combined with Rule 37.14(2), or Rule 38.11(3), of the Civil rules permit the court to set aside the adoption order made on March 20th, 2013.

[71] The Applicant also suggests that another route to readdressing the adoption order may be found in the inherent jurisdiction of the court to control its own process.

[72] I do not agree that that principal can be extended to affect the result urged upon me here. This court is a statutory court and ordinarily must found each step taken by the court in statute. Having determined here that such a route exists, any resort to the court's inherent jurisdiction is unnecessary, even presuming, which I doubt, that that route exists on the facts of this case where the "process" asked to be "controlled" is the setting aside of a final order of the court. I do not give effect to this submission.

[73] I am unconvinced that any step to change the adoption order short of setting aside that order on a temporary basis is available here. Once set aside the renewed existence of the order can be revisited after allowing the notice requirements of Section 145.1.1 of the Act to be carried out, and after dealing on the merits with any applications that may have been made under Section 145.1.2 of the Act. At that stage a narrower application of the nunc pro tunc principal can be engaged to reset the final adoption order.

Exercise of Discretion

[74] The application considered here was to determine whether the court had jurisdiction to reopen the final adoption order to permit a just opportunity to correct the Applicant's failure to give the notice required under Section 145.1.1 of the Act. I have found that the court has such jurisdiction. The question to be answered next is whether the court ought to exercise that jurisdiction and whether a further opportunity should be given to the parties to make submissions on this latter point?

[75] The matter was fully argued before me here. The Applicant and the OCL jointly sought an opportunity to deal with the openness issue on the merits. The Respondent focused on the submission that no such jurisdiction exists for the relief claimed. All parties fully laid their respective cards on the table. No further submissions are necessary on the issue of whether the court ought to exercise the jurisdiction that I have found exists here. Inherent in the application for direction is a request to exercise that jurisdiction if found.

[76] In my view justice requires that I exercise the jurisdiction that I have determined exists here. The trial court determined on February 14th, 2011, that Crown ward A.G. and her brother D.R. ought to have mutual access. Other siblings may also seek to assert the right to access included in that order. By the mistake of the Applicant that court order was improperly frustrated. There is no real issue in my view that, should jurisdiction exist, the jurisdiction ought to be exercised to open the issue of notice.

[77] The child A.G. came into the care of the Respondent in March of 2010. The issue of openness still has not been dealt with in the summer of 2015. Her interests, as well as those of D.R. and any other interested parties, require that the matter be dealt with quickly.

[78] A corollary to the service of the notices required by Section 145.1.1 of the Act is that the timing of such notices and the time frame under which a person who has received such a notice may bring an application for an openness order must necessarily be varied. The intent of the legislation is to have all such events concluded before the adoption placement. The timing with regard to A.G. and D.R. is not really an issue as they are named in the Crown wardship order made on February 14th, 2011, as persons who are entitled to mutual access. Beyond these two children however lies the issue of other siblings who may be entitled to notice but whose name or location may be unknown. If necessary the court will consider a request for further direction and or a request by the Applicant to dispense with notice as allowed under the Act. Of necessity this will take time and the issue of the time under which any such persons may receive and respond to such a notice may need further adjudication.

[79] There is a collateral issue not yet dealt with by the court: the appointment of OCL counsel to represent the interests of A.G., D.R., and other potential siblings. That matter was addressed in a limited fashion on May 13th, 2015, but has not been determined. I permitted the OCL to attend on this application to make submissions on the issue of jurisdiction only. Further, the issue of whether OCL counsel ought to be appointed for the untidy class of "siblings" remains a live issue. If counsel are unable to reach a consensus on OCL representation a further motion date will need to be scheduled.

Costs

[80] No party addressed the issue of costs at the hearing of the application. The Application itself contains no request for costs. The Applicant and OCL have been successful in advancing an argument that this court has jurisdiction to revisit the openness issue. The Respondent's submission was not accepted but was a reasonable position founded on the legislation. The success of the Applicant's submission was by no means self-evident, and the very necessity for this application was caused by the failure of the Applicant to obey the law. The issue is a novel issue at law. No costs are appropriate here.

Sealing Order

[81] Although this file is inherently a child welfare file with the limited privacy protections that are part of such a file under Part III of the Act, the contents of the file contain intimately detailed facts concerning the adoption of A.G. by the Respondent, identifying many persons by their relationships, their full names and dates of birth. Adoption files are sealed documents as set out in Part VII of the Act to preserve the privacy of the parties. In my view this file ought to be treated in a similar way and not be open to casual inspection in the court office as it has been to date. In this regard I find that I do have an inherent jurisdiction to temporarily seal this file by analogy to the privacy protection provisions of Part VII, pending the final disposition of this matter.

Order

[82] I therefore make the following temporary order:

1. This court has the jurisdiction to reopen the issue of the notices required to be given pursuant to Section 145.1.1 of the Child and Family Services Act and to hear any applications for openness orders sought to be made under Section 145.1.2 of the said Act in regards to an Adoption Order made on March 20th, 2013, at Orangeville, wherein the Respondent adopted the child now known as A.G., as if the child A.G. had not yet been placed for adoption by the Applicant with the Respondent.

2. The Adoption Order dated March 20th, 2013, at Orangeville, wherein the Respondent adopted the child now known as A.G. is accordingly temporarily set aside pending the service of the said notices and the hearing of any applications for openness orders that may be made after service of the said notices, as if the child A.G. had not yet been placed for adoption.

3. The Applicant shall cause notices pursuant to Section 145.1.1 of the said Act to be served upon the Office of the Children's Lawyer as representative of A.G. and D.R. on or before September 1st, 2015, as if the child A.G. had not yet been placed for adoption. The Office of the Children's Lawyer shall have thirty days from the time the said notice is received to apply for such an openness order or orders pursuant to Section 145.1.2 of the said Act, as may be desired.

4. The Applicant may apply to the court if desired for further direction on the issue of what other persons may be entitled to notice under Section 145.1.1 of the said Act and or to dispense with service upon any such person or persons.

5. Should no such further direction be sought, the Applicant, on or before September 1st, 2015, shall serve such notices as it is required to serve under Section 145.1.1 of the said Act to such persons the Act requires be served, as if the child A.G. had not yet been placed for adoption. Persons so served shall have thirty days to make such application or applications desired for an openness order pursuant to Section 145.1.2 of the said Act.

6. Following the completion of the hearing of the last application under Section 145.1.2 of the said Act, if any, and subject to the right of any party to appeal the result of such a hearing under the said Act, the temporary setting aside of the said Adoption Order dated March 20th, 2013, referenced in paragraph 2 of this order, shall be ended and the said order shall be in full force and effect, nunc pro tunc, as originally made on that date, subject only to any openness orders that may be made herein.

7. The issue of the representation of A.G. and D.R. by counsel from the Office of the Children's Lawyer, if not otherwise settled between counsel, may be spoken to on September 2nd, 2015. If counsel reach a consensus on this issue, a Rule 14 motion in chambers may be made.

8. The issue of the appointment of other Children's Lawyer counsel to represent the interests of the other siblings of A.G. shall be spoken to on September 2nd, 2015.

9. The issue of the timing of the hearing of any Section 145.1.2 applications that may be made under the said Act shall be spoken to on September 2nd, 2015.

10. This matter shall continue to be heard at Orangeville.

11. This file shall be sealed subject to further order of the court. Court administrative staff, counsel for the parties and the Office of the Children's Lawyer, and their respective staff or agents, may request the temporary opening of the file by court staff for the purposes of filing documents and updating the continuing record without the permission of the court. A Rule 14 chambers motion for an order to temporarily open the court file may be made in other circumstances.

12. This matter is subject to the restrictions on publication contained in Part III of the said Act.

13. No costs are payable with regard to the hearing of this application on July 22nd, 2015.

14. Adjourned to September 2nd, 2015, at 9:30 am, as previously endorsed, to be spoken to.

Justice Bruce E. Pugsley Ontario Court of Justice at Orangeville