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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication. — The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: Toronto 072242/14, 072248/14, 072260/14, 072266/14

Date: 2016-04-29

Ontario Court of Justice

Between:

N.P.T.S.-K.-KIRYK

Applicant

— AND —

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, P.S., N.P.A.B.S.S.-K., S.S. AND J.C.

Respondents

N.P.A.B.S.S.-K.

Applicant

— AND —

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, P.S., N.P.T.S.-K.-KIRYK, S.S. AND J.C.

Respondents

P.S.,

Applicant

— AND —

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, N.P.T.S.-K.-KIRYK, N.P.A.B.S.S.-K., S.S. AND J.C.

Respondents

P.S.,

Applicant

— AND —

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, N.P.T.S.-K.-KIRYK, N.P.A.B.S.S.-K., S.S. AND J.C.

Respondents

Before: Justice Curtis

Heard on: 30 March 2016

Reasons for Judgment released on: 29 April 2016

Counsel

Margarida Pacheco . . . . . . for the applicant/respondent children N.P.A.B.S.S.-K. and N.P.T.S.-K.

Rachel Buhler . . . . . . . . . . . . for the respondent Catholic Children's Aid Society

Bradley Berns . . . . . . . . . . for the applicant/respondent mother P.S.

Gilead Kay . . . . . . . . . . . . for the respondents S.S. and J.C.

CURTIS, J.:

INDEX

1. Overview
2. Positions of the Parties
3. Background
4. Events since the Crown Wardship Order on 14 August 2014
5. Legal Test regarding Openness
   • a. Openness is not Defined
   • b. Differences between Access and Openness
   • c. What Openness is and is Not
   • d. The Policy Considerations around Openness
   • e. Factors to be Considered
6. Analysis
7. Order

1. Overview

[1] There are two applications for openness orders under s. 145.1.2 of The Child and Family Services Act, R.S.O. 1990, c. C.7, as amended ("C.F.S.A."), one brought by each of the two children, N.P.A.B.S.S.-K. (born […], 2008, 7 years old) and N.P.T.S.-K. (born […], 2011, 4½ years old). There are also two such applications brought by the mother, P.S., one regarding each of the children.

[2] This decision relates to a motion brought by each of the children for a temporary openness order under s. 145.1.2 (10) C.F.S.A. regarding contact with their mother. The motions were heard together. The children's motions were brought in November 2015 but were not argued until 30 March 2016.

[3] The issues for decision on this motion are these:

a) whether there should be an order for temporary openness; and,

b) If so, what should the temporary openness order be?

2. Positions of the Parties

[4] The two applications brought by the children ask for the following:

a) Openness orders for each child, to be face-to-face contact with the mother, a minimum of alternate Sundays and alternate Thursdays;

b) If the children are not living in the same home, openness orders for each child, to be face-to-face contact with the other child, a minimum of alternate Sundays and alternate Thursdays;

c) Additional orders for contact between the children and the mother, and between the children, to include letters and pictures; and,

d) A dispute resolution mechanism that requires alternate dispute resolution before a court case is started.

At the motion for a temporary openness order, the children were each claiming visits with the mother at least once per month. Child's counsel advises that the children want to see the mother and enjoy the visits.

[5] The two applications brought by the mother ask for the following openness orders:

a) Access (sic) by the mother to each child, a minimum of two face-to-face visits per month, in the community, to include in her home, if so desired, being alternate Saturdays from 11.30 a.m. to 4.15 p.m., and alternate Thursdays from 3.30 p.m. to 6.30 p.m.;

b) The location and other particulars of the face-to-face visits shall be as agreed by the adoptive parent and the mother;

c) The adoptive parent and the mother shall attempt to arrange these visits to include significant holiday times, such as near the child's birthday, Christmas season and summer;

d) The mother may provide letters and photos with (sic) the children, taking into consideration the needs and wishes of the children; and,

e) If there is a disagreement with respect to the contact, the parties shall use an alternative form of dispute resolution.

The mother did not bring a motion for an order for temporary openness. At the motion brought by the children, the mother supported the claims being made by the children, and was consenting to the temporary access (sic) being supervised (but not supervised by the proposed adoptive family), and was consenting to the Supervised Access Centre being used.

[6] The proposed adoptive family were added as parties, on consent, on 30 March 2016. It does not appear that they filed an Answer to any of the four openness applications. When the openness applications were originally started (in December 2014) the proposed adoptive family was willing to agree to some limited contact. They were proposing four face-to-face visits per year, the exchange of cards and letters, and contact by Skype as arranged between the mother and the proposed adoptive family, taking into account the children's wishes and best interests.

[7] The proposed adoptive family advised Catholic Children's Aid Society of Toronto ("C.C.A.S.") in September 2015 that they were no longer willing to consent to an openness order involving face-to-face visits. They were willing to agree to other forms of contact, such as Skype, letters, photos, and providing updates, such as report cards. At the motion for an order for temporary openness, the proposed adoptive family did not agree to any openness order being made.

[8] C.C.A.S. supports the request for an openness order, but in their Answer requests an order for a minimum of only four face-to-face visits per year. At the motion, C.C.A.S. supported the position of the proposed adoptive family.

3. Background

[9] P.S. is the mother of the two children. She is 26 years old (born […], 1989).

[10] On 1 August 2014 after a seven day trial, Otter, J. made an order for crown wardship regarding N.P.A.B.S.S.-K. and N.P.T.S.-K.. At trial the children were both living with the maternal grandmother (S.S.) and her partner (J.C.) ("the proposed adoptive family"). The children were placed with them in December 2012 (and are still living there). Both children were found to have "adjusted well and thrived in their consistent and loving care". At the crown wardship trial, the maternal grandmother and her partner maintained their position that they intended to proceed with adoption of both children, even if the court ordered access to the mother. Their position was that they had no intention of totally excluding the mother from the children's lives and that the mother would always have a presence in the children's lives.

[11] Otter, J. found that continued access by the mother to both children was beneficial and meaningful to the children. The court ordered access to the mother, subject to the discretion of C.C.A.S., to include a minimum of alternate Sundays from 11.30 a.m. to 4.15 p.m., and alternate Thursdays from 3.30 p.m. to 6.30 p.m.. Access was to include visits to educational and sporting events of both children, if circumstances permit.

4. Events since the Crown Wardship Order on 14 August 2014

[12] On 27 November 2014 (three months after the crown wardship decision) C.C.A.S. served the children and the mother with the Notice of Intention to Place for Adoption. This meant that the access between the children and the mother ended (by operation of law, under C.F.S.A. s. 143).

[13] On 17 December 2014 the child N.P.T.S.-K. brought an application for an openness order. On 18 December 2014, the child N.P.A.B.S.S.-K. brought an application for an openness order. On 22 December 2014 the mother brought two separate applications for openness orders regarding N.P.A.B.S.S.-K. and N.P.T.S.-K.. These four applications (in four separate court files) are being heard and determined together.

[14] The children, who had been living with the proposed adoptive family since December 2012, were formally placed with the proposed adoptive family for adoption on 14 January 2015.

[15] After the completion of the exchange of pleadings in these openness applications, the parties met to try to resolve the applications.

[16] After the adoption placement on January 2015, the parties agreed (without court intervention) to three visits between the mother and the children (23 February 2015, 19 December 2015, and 12 February 2016).

[17] These are examples of the mother's recent behaviour:

a) After the trial decision and prior to the adoption placement (a period of five months), the mother missed half of her scheduled visits. For at least three of those visits, she did not attend and did not notify the agency of her inability to attend until the children had already arrived for the visits;

b) N.P.A.B.S.S.-K. missed a birthday party due to the mother's inflexibility. The mother was asked to accommodate this and was told that it would result in her missing only part of her visit. She refused to do so;

c) N.P.A.B.S.S.-K. has also missed many of his ball hockey lessons due to the specific access regime in the crown wardship order. The mother refused to have the visits start half an hour later to accommodate this;

d) The mother has repeatedly discussed the court case in front of the children, even after she was told not to do so;

e) The mother has cried in front of the children, and during visits;

f) At the visit on 23 February 2015, when N.P.A.B.S.S.-K. referred to himself by his new surname (N.P.A.B.S.S.-K., rather than N.P.A.B.S.S.-K.) the mother repeatedly corrected him, and then had conflict with the maternal grandmother about it, in front of the children. The mother became irate and was swearing. At one point she threatened to punch J.C.; she approached the maternal grandmother and started yelling at her;

g) On 19 September 2015 during a visit between the paternal grandparents, the father and the children, the father called the mother on the phone and the children spoke to her. N.P.A.B.S.S.-K. told the caregivers later that the mother told him to tell the workers that he wanted to see her. N.P.A.B.S.S.-K. also said that the mother was crying on the phone and that she told him when he is older he can come to live with her;

h) The mother has yelled at, and sworn at the caregivers. She has also told the children things to undermine their placement (e.g., that the caregivers are not their parents, not to tell them anything that happens on visits, telling the children they were coming to live with her one day);

i) The mother has stated that she would be moving closer to the children (she has now moved from Toronto to Brantford where they live) and the reason for the move was so that she could see the children whenever she wanted. She has also posted on social media about this plan;

j) The mother has reminded the children to call the caregivers by their first names, rather than "Nanny" and "Nana", which names the children have used for the caregivers for some time;

k) The mother continues to tell the children they will be returning to her care; and,

l) The mother has stated a number of times that she will never accept this placement.

[18] This is the evidence regarding N.P.A.B.S.S.-K.' behaviour after visits with the mother:

a) N.P.A.B.S.S.-K. exhibited significant behavioural issues at school following visits to his mother. He has demonstrated physical aggression towards his peers, such as kicking and hitting, and he has thrown a chair in the classroom. He also made a comment about wanting to hurt himself;

b) It took three weeks for N.P.A.B.S.S.-K.' behaviour to settle after the visit of 23 February 2015. In the weeks following the visit, his behaviour in school was angry and aggressive, he was yelling at teachers and hitting other students. On one occasion, it resulted in the classroom being evacuated and N.P.A.B.S.S.-K. being sent home. N.P.A.B.S.S.-K. was then six years old;

c) After the visit of 12 February 2016, N.P.A.B.S.S.-K. had a very difficult time at school for three weeks. He set off the fire alarm, stole from his classmates' backpacks, stole money from the teacher's desk in the classroom, ran away from adults and out of the classroom, left the school building and wandered into the parking lot, and he spit at teachers. The teacher described this behaviour as unusual for him;

d) The proposed adoptive family's evidence is that they constantly have to reassure N.P.A.B.S.S.-K. that their home is his forever home. He fears he will have to leave this home, which does not allow him to feel like he is in a permanent family; and,

e) N.P.A.B.S.S.-K. experienced anxiety around the visits with his mother. He is untruthful about what happens during visits and has told his caregivers that his mother has told him he is not supposed to tell them about what happens during visits.

[19] The proposed adoptive family had been informally facilitating visits between the children and the paternal grandparents and the father (who lived with the paternal grandparents), without a court order. Their plan was to continue to do so four times per year, and they were open to additional calls or the possibility of contact, if circumstances permitted. They felt that these visits were beneficial and meaningful for the children. They felt that the children looked forward to seeing their paternal grandparents, the paternal grandparents planned child-focused activities and did not undermine their role as caregivers. They also did not observe any emotional impact of these visits on the children.

[20] The mother says she is currently living in a mental health facility and receiving treatment. There was no evidence about the name of the facility, the nature of the facility, the length of the treatment or the nature of the treatment. No assessment, or treatment recommendations or treatment plan was produced. No medical evidence of any kind was provided on this issue.

[21] It was undisputed that the relationship between the mother and the proposed adoptive family was toxic and was riddled with distress and conflict, both in the past and on an on-going basis.

5. Legal Test regarding Openness

[22] These are the relevant sections of the C.F.S.A.: ss. 136, 143, 145.1.1, 145.1.2. The most important sections for the purposes of this motion are ss. 136, 143, 145.1.2 (6), (7), and (10):

Interpretation

136. (1) In this Part,

"openness order" means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child's extended family or community, or

(c) if the child is an Indian or native person, a member of the child's band or native community who may not have had a significant relationship or emotional tie with the child in the past but will help the child recognize the importance of his or her Indian or native culture and preserve his or her heritage, traditions and cultural identity; ("ordonnance de communication")

Access orders terminate

143. (1) When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under Part III (Child Protection) in respect of a Crown ward. 2011, c. 12, s. 4.

Access order in effect

Notice of intent to place for adoption

145.1.1 (1) This section applies where,

(a) a society intends to place a child who is a Crown ward for adoption; and

(b) an order under Part III (Child Protection) has been made respecting a person's access to the child or the child's access to another person. 2011, c. 12, s. 6.

Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. The person who has been granted an access order.
2. The person with respect to whom an access order has been granted. 2011, c. 12, s. 6.

Right to apply for openness order

(3) The society shall include in the notice the following information:

1. Notice that the society intends to place the child for adoption.
2. Notice that the access order terminates upon placement for adoption.
3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.
4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received. 2011, c. 12, s. 6.

Method of giving notice

(4) Notice may be given by any of the following methods:

1. Leaving a copy, i. with the person, ii. if the person appears to be mentally incapable in respect of an issue in the notice, with the person and with the guardian of the person's property or, if none, with the Public Guardian and Trustee, or iii. if the person is a child, with the child and with the child's lawyer, if any.
2. Leaving a copy with a lawyer who accepts the notice in writing on a copy of the document. 2011, c. 12, s. 6.

Alternate method

(5) On application without notice by a society, the court may order that notice under subsection (2) be given by another method chosen by the court if the society,

(a) provides detailed evidence showing, (i) what steps have been taken to locate the person to whom the notice is to be given, and (ii) if the person has been located, what steps have been taken to give the notice to the person; and

(b) shows that the method of giving notice could reasonably be expected to bring the notice to the person's attention. 2011, c. 12, s. 6.

Notice not required

(6) On application without notice by a society, the court may order that the society is not required to give notice under subsection (2) if,

(a) reasonable efforts to locate the person to whom the notice is to be given have not been or would not be successful; and

(b) there is no method of giving notice that could reasonably be expected to bring the notice to the person's attention. 2011, c. 12, s. 6.

Access order in effect

Application for openness order

145.1.2 (1) A person described in paragraph 1 of subsection 145.1.1 (2) may, within 30 days after notice is received, apply to the court for an openness order. 2011, c. 12, s. 6.

Notice of application

(2) A person making an application for an openness order under this section shall give notice of the application to,

(a) the society having care and custody of the child;

(b) the child, except as otherwise provided under subsection 39 (4) or (5); and

(c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made. 2011, c. 12, s. 6.

Condition on placement

(3) A society shall not place a child for adoption before the time for applying for an openness order under subsection (1) has expired unless every person who is entitled to do so has made an application for an openness order under this section. 2011, c. 12, s. 6.

Information before placement

(4) Where an application for an openness order under this section has been made, a society shall, before placing the child for adoption, advise the person with whom it plans to place the child of the following:

1. The fact that such an application has been made.
2. The relationship of the applicant to the child.
3. The details of the openness arrangement requested. 2011, c. 12, s. 6.

Outcome of application

(5) Where an application for an openness order under this section has been made, a society shall advise the person with whom the society has placed or plans to place the child for adoption or, after an adoption order is made, the adoptive parent of the outcome of the application. 2011, c. 12, s. 6.

Openness order

(6) The court may make an openness order under this section in respect of a child if it is satisfied that,

(a) the openness order is in the best interests of the child;

(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

(c) the child has consented to the order, if he or she is 12 years of age or older. 2011, c. 12, s. 6.

Same

(7) In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order. 2011, c. 12, s. 6.

Consent of society required

(8) The court shall not, under this section, direct a society to supervise or participate in the arrangement under an openness order without the consent of the society. 2011, c. 12, s. 6.

Termination of openness order if Crown wardship terminates

(9) Any openness order made under this section in respect of a child terminates if the child ceases to be a Crown ward by reason of an order made under subsection 65.2 (1). 2011, c. 12, s. 6.

Temporary orders

(10) The court may make such temporary order relating to openness under this section as the court considers to be in the child's best interests. 2011, c. 12, s. 6.

a. Openness is not Defined

[23] Openness is not defined in the legislation. In enacting the openness provisions, the legislature crafted terms quite separate from the Act's provisions for access. An order for access typically allows visits involving direct, exclusive contact with a child. The purpose of an openness order is the preservation of a "beneficial and meaningful" relationship for the child, while supporting the child's security in his adoptive family: Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (Ont. Ct.), para. 198.

b. Differences between Access and Openness

[24] The case law has established that there are qualitative differences in the amount of contact a party will have with the child before and after a crown wardship order is made, and then again, after a child is placed for adoption and an openness order is made.

[25] The granting of a crown ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a crown ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a crown ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child: Children's Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 (Ont. Ct.), para. 90; Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109 (Ont. Ct.), para. 81 and 82.

[26] Amendments to the C.F.S.A. effective 1 September 2011 created a process by which that access order will be terminated upon an adoption, subject to the right of the party with the access order to apply for an openness order. The important point to note is that even if a crown wardship order provides for access, that access ends once a notice of intent to place for adoption is made: Children's Aid Society of the Region of Peel v. A.R., supra, 2013 (Ont. Ct.), para. 89.

[27] An access order post crown wardship is qualitatively different than a contact order post adoption. Further, there is a significant legal difference between an "access" order and an "openness" order. Although "openness" is not defined in the legislation, its purpose is quite different from access, which is why the legislature crafted terms separate and distinct from the Act's provisions for access: The Children's Aid Society, Region of Halton v. T.A.G., A.D., J.P.P., [2012] O.J. No. 5824, 2012 ONCJ 746 (Ont. Ct.), para. 233.

c. What Openness is and is Not

[29] This is not an application or a motion regarding access. Openness is not access. It is something different. Neither openness nor access is defined in the C.F.S.A.. But one thing is clear: openness and access are not the same: T.L.K. v. Children's Aid Society of Haldimand Norfolk, H.J.B. v. Children's Aid Society of Haldimand Norfolk and T.L.K., [2015] O.J. No. 6235, 2015 ONSC 5665 (Ont. Sup. Ct.), para 78.

[30] An openness order does not necessarily mean that there will be direct and exclusive contact between the person who previously enjoyed access and the child. The court may allow indirect contact by means of pictures or letters, or occasional direct contact on special occasions. The court may leave the particulars of contact in the discretion of the adoptive parents: Catholic Children's Aid Society v. M.M., supra, 2012 (Ont. Ct.), para. 198; The Children's Aid Society, Region of Halton v. T.A.G., A.D., J.P.P., supra, 2012 (Ont. Ct.), para. 233.

[31] "Openness" connotes some contact post-adoption between a child and a member of the child's biological family. The legislation does not specify or limit what type of contact is contemplated in openness arrangements, but the purpose of the openness provisions is clear: to facilitate a child's development in his adoptive home by providing a link for the child to his past and heritage. This is a very different purpose than that of an access order: Native Child and Family Services of Toronto v. K.W.-H., 2007 ONCJ 169 (Ont. Ct.), para 14.

[32] Openness must not be confused with access. Openness allows for a form of contact by the biological parent or member of the biological family (or other person who enjoyed a significant emotional tie with the child) post adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents, and which was terminated by the Crown wardship order, becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post adoption by way of an openness order: Re Proposed Openness Order for S.M., 2009 ONCJ 317, [2009] O.J. No. 2907 (Ont. Ct.), para. 187; Native Child & Family Services of Toronto v. J.E.G., supra, 2014 (Ont. Ct.), para. 84.

[33] An openness order does not give the named birth parent the status of an access parent in an access order: Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 18.

[34] An openness order is not the equivalent of an access order under Part III of the C.F.S.A.. The birth parent cannot go back to the "old" access order. That order was terminated on the placement of the child for adoption (under C.F.S.A. s. 143): Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 24-25.

d. The Policy Considerations around Openness

[28] From a policy perspective, in the C.F.S.A., the overall scheme is one under which an adoption placement, and subsequent order, creates a new family unit, expunging the past historical family unit. The 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, that is, the placement for adoption: Bruce Grey Child and Family Services v. R.G., [2015] O.J. No. 7000, 2015 ONCJ 412 (Ont. Ct.), para. 43.

e. Factors to be Considered

[35] Adjudication of an openness application is not, however, the same decision-making as an adjudication of a crown wardship access. Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 261.

[36] An openness order cannot be permitted to undercut the security of the child in his adoptive placement: Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 18.

[37] The form openness should take is a very important one and is one that should be "road tested": Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.); Native Child & Family Services of Toronto v. J.E.G., supra, 2014 (Ont. Ct.), para. 89.

[38] The importance of a stable adoptive home cannot be overstated. An openness order should not leave a child straddling his "old" and the "new" life in a manner that disinclines him to root himself in his adoptive life: Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 17; Native Child & Family Services of Toronto v. J.E.G., supra, 2014 (Ont. Ct.), para. 89.

[39] If the children's best interests are to be served, these children need the opportunity to root themselves in the parenting of the proposed adoptive family, to find a secure place as members of that family, to have the continuity of that parenting and to be positioned so that there is no risk of disruption of that continuity: Re Proposed Openness Order for S.M., supra, 2009 (Ont. Ct.), para. 187.

[40] Before any openness order is granted a court shall consider "the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order." s. 145.1.2 (7).

[41] Whether or not there will even be an openness order will depend on the views of the potential adoptive parents, and the willingness of the biological parents to support the child in her new adoptive home, hopefully after the contact order has been "road tested" and found to be workable in this child's best interests: Native Child & Family Services of Toronto v. J.E.G., supra, 2014 (Ont. Ct.), para. 93.

6. Analysis

[42] After the adoption is final, C.C.A.S. will no longer be involved with the proposed adoptive family. They will not be there as a buffer to assist with making an openness order work. After the adoption is final, any contact between the children and the mother would need to be facilitated between the mother and the proposed adoptive family.

[43] The mother repeatedly refers to this request for openness with the children as a request for access. She states that an access order was made by Otter, J. on 1 August 2014 when crown wardship was ordered, and that she expects that access order to continue indefinitely. In fact, in her openness applications she asks for an access order that is identical to the access ordered by Otter, J. in the crown wardship decision.

[44] The mother should not have assumed that the crown wardship access order, which allowed for face to face contact and frequent contact (weekly), would automatically be transformed into an openness order. It appears that she has made this assumption.

[45] The mother's access to the children in the order of Otter, J. was specifically tied to the crown wardship order. It was not a stand-alone order for access. It was not an access order in a custody case under the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. The crown wardship order was made and permits the children to be adopted. The placement of the children for adoption ends the mother's access order (under C.F.S.A. s. 143), by statute and by operation of law.

[46] The proposed adoptive family have provided the children with a stable home, excellent care and consistent and nurturing parenting. The children have demonstrated a strong attachment to the proposed adoptive family and have settled into their home as a permanent placement. The proposed adoptive family have established a family unit within which the children feel emotionally secure and a sense of belonging.

[47] The caregivers continue to have concerns that the mother is undermining the permanence and the nature of their role and have concerns about the impact on the children.

[48] The mother has a strong sense of the children being "her" children, and not the children of the caregivers. She is unable to accept that the maternal grandmother and her partner have adopted the children. She is unable to accept and move on from the circumstances under which the children came to live with the proposed adoptive family (that is, the mother is not able to not blame the proposed adoptive family for this fact).

[49] The mother has demonstrated that she has been unable to accept the caregivers in the capacity of permanent caregivers for the children, and often tries to undermine the placement. Given this, it is unlikely that she will be able to accept or support the adoption and the caregivers' permanent role as parents. The more frequent her contact with the children, the more opportunity the mother will have to convey this to the children, which will ultimately negatively impact their emotional well-being and stability.

[50] The mother has not accepted the significantly reduced role in the children's lives that results from a crown wardship order. She does not understand that the access order granted by Otter, J. on 1 August 2014 does not survive the adoption process (or even the placement for adoption), and is no longer a valid order.

[51] The mother has demonstrated and verbally acknowledged that she is unwilling to accept the placement and will continue to undermine the placement. She has demonstrated that she does not accept the proposed adoptive family as the children's parents. The mother's behaviour during face-to-face visits will impair the children's ability to develop a positive and secure place as members of their family, and will result in destabilizing the children's placement.

[52] The openness schedule requested by the children and the mother (alternate Sundays and alternate Thursdays) is onerous. It would require the proposed adoptive family to be organizing and accommodating contact between the children and the mother every week. It is a schedule that is intrusive and disruptive. The proposed adoptive family would have difficulty developing a normal home and recreational schedule. The requested schedule would also interfere with family time needed in order to support their development as an independent family unit. The requested schedule interferes with the proposed adoptive family's autonomy and their ability to plan daily and special activities as an independent family unit.

[53] The openness schedule requested by the children and the mother would require a lot of contact between the adults and a lot of co-operation. It would require a high-functioning relationship between adults with mutual respect for each other's roles in the children's lives. It would require adults who accept and understand the roles that each have in the children's lives.

[54] That is not the relationship that the mother has with the proposed adoptive family. In fact, the relationship is conflict-ridden, and the mother is sometimes openly hostile to the proposed adoptive family. The hostility by the mother towards the children's placement in the care of the proposed adoptive family is harmful to the children's well-being. It is unrealistic and untenable to expect the parties to carry out the prescriptive and demanding level of contact in the schedule requested. To do so would undermine the adoption placement of the children and would jeopardize their over-all well-being. The children's physical, mental and emotional level of development will be adversely affected by the mother's behaviour.

[55] The children's lawyer argued that the right to maintain the relationship is a right of the child, and that it is the adults in this matter that need to change. While that may be so, it is not happening, it has not happened in the more than three years that the children have been living with the proposed adoptive family, and there is no evidence that it is going to happen.

[56] A family needs to have a structure and predictability. A family also need autonomy. The issue here is whether the court should impose an openness order on the proposed adoptive family, or the proposed adoptive family should have the autonomy to make this decision for itself, in the children's best interests.

[57] The openness arrangement is not intended to serve the needs and interests of the biological parent. The court's primary concern, indeed the court's only concern in these cases and at this point in the case, is the children's best interests, which at present requires that the court ensure and protect the viability of the children's placement. A court has already decided that these children should become crown wards. The C.C.A.S. has already decided that the children should be adopted by the proposed adoptive family. Both these decisions were made in the children's best interests. The court can now consider post-adoption openness, but only in the context of the children's best interests, and only if such contact is in the children's best interests. If the court cannot find that such contact is in the children's best interests, it will not be ordered.

[58] Applications for openness orders are new and they are not often contested. There is not yet a body of case law on this issue. Also, there is no case law dealing with motions for temporary openness orders. In many such applications, the issue is resolved on consent (as it was for these children initially, as the parties agreed to three visits for the children with the mother after the adoption placement, without court order).

[59] In determining whether there should be a temporary order, the court is restricted to the evidence available at the time of the motion, which evidence is untested by cross-examination. None of the parties asked to cross-examine on the affidavits filed. The order made is temporary, and is intended to last until the parties can have a trial on the issues or resolve the issues otherwise without a trial.

[60] In determining the application for openness the court is required to take into account the ability of the proposed adoptive family to comply with an openness order (C.F.S.A. s. 145.1.2 (7)). That requires the court to take into account the views of the proposed adoptive family. The views of the proposed adoptive family are important and should be accorded great respect by the court. Those views are not determinative of the issue but the court should give them very serious consideration.

[61] The proposed adoptive family have shown that they are responsible, flexible, patient and willing to try to make a difficult situation work. They have shown this under adverse circumstances over a significant period of time. The proposed adoptive family knows better than anyone else how the visits that took place have affected the children and have affected their family. The court has significant confidence in the point of view of the proposed adoptive family.

[62] The mother has had more than three years since the children went to live with the proposed adoptive family to show that she can support this placement for the sake of the children. She has had more than 19 months since the Crown wardship order in August 2014 to show that she understands what the crown wardship order means and understands that the children will live permanently with the proposed adoptive family and they will be the children's parents. The message from her behaviour is clear. She cannot do this, and has not done it.

[63] The security and stability of the children in the home of the proposed adoptive family is the most important factor for the court. If there is an openness order made now, there is a risk of destabilizing and even of jeopardizing the placement. This is too big a risk for these children, and not one the court is prepared to take.

[64] There may be a time when the mother is able to have contact with the children without destabilizing the adoption. That time is not now. Her behaviour has made that abundantly clear. She cannot control her behaviour. She cannot unconditionally support the children in their adoptive placement, which is what the children need right now, and indeed, what they are entitled to. She cannot put the children's needs ahead of her own. If she cannot do all these things, contact with her (through an openness order) is not in the children's best interests. Openness with the mother is not currently in the children's best interests.

7. Order

[65] The children's motion for a temporary openness order is dismissed.

[66] As these reasons deal directly with this issue, the mother shall not bring a separate motion for a temporary order for openness.

[67] The proposed adoptive family asked the court to consider the issue of costs if the motion for a temporary openness order is dismissed. The claim for costs shall be argued. On receipt of these reasons for decision, the party claiming costs shall contact the court and the court staff shall set a return date as soon as possible. The parties shall exchange written material supporting or opposing the costs claim (maximum four pages, plus the summary of costs claimed and any offers to settle), and shall include case law dealing with costs against the Office of the Children's Lawyer (as claimed by the proposed adoptive family). The lawyers shall work out a timetable for the exchange of material. If they are unable to do so, any party may ask for the court to determine a timetable with a request on a Form 14B motion.

Date: 2016-04-29

Justice Carole Curtis