Court File and Parties

Court File Number: 4/2015

Date: 2016-09-07

Ontario Court of Justice at Orangeville

Between:

Bruce Grey Child and Family Services Applicant

and

R.G. Respondent

Before: Justice B. E. Pugsley

Heard: August 30th, 2016

Released: September 7th, 2016

NOTICE AND WARNING

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. John Morscher for Applicant
• R.G. and counsel Mr. Steven Fehrle
• Ms. Glenna McClelland for Office of the Children's Lawyer for D.R.
• Ms. Christine Torry for Office of the Children's Lawyer for A.G.
• Ms. H. Jane Robertson for Office of the Children's Lawyer for S.M.

Endorsement

Background and Procedural History

[1] The Office of the Children's Lawyer brings two separate motions pursuant to paragraph 145.1.2(10) of the Child and Family Services Act RSO 1990 c. C.11, as amended, for orders seeking openness on an interim basis between two children: A.G. (age 8) and D.R. (age 10).

[2] Ms. Robertson on behalf of the Office of the Children's Lawyer for S.M. supports the orders sought but makes no motion for interim relief on behalf of her client.

[3] The Applicant supports the orders sought and stands ready to assist in the implementation of any such order.

[4] The Respondent opposes the orders sought and submits that any openness order here ought to abide the trial of this matter.

[5] The history of this matter is set out in detail in the prior endorsements made herein on July 30th, 2015, and September 2nd, 2015. For the purposes of this decision I will briefly set out that history.

Factual Background

[6] A.G and D.R. are two of many children of K.A.A. A.G. came into the foster care of R.G. after she was apprehended by the Applicant. A.G. has been in the continuous care of R.G. since March of 2010. D.R. was also cared for by R.G. as a foster mother. For a time therefore A.G. and her half sibling D.R. lived together with R.G.

[7] On February 14th, 2011, A.G. was made a Crown ward and D.R. was placed with his biological father under a supervision order. The order of February 14th, 2011, ordered that there be access between A.G. and her half-brother, D.R., and with her other siblings. No parental access was ordered. Access between A.G. and D.R. was to be reasonable access to be exercised in the discretion of the Applicant. Some access took place but access was not enthusiastically supported by either the Applicant or R.G.

[8] K.A.A. appealed the February 14th, 2011 order unsuccessfully. Adoption planning for A.G. then accelerated. On March 13th, 2013, a final adoption order was made whereby A.G. became the daughter of R.G. The adoption application did not reference the existing sibling access order.

[9] Meanwhile, D.R.'s placement with his father fell apart and he came back into the Applicant's care. A trial took place in the spring of 2013 wherein the Applicant sought to have D.R. made a Crown ward. In his decision dated July 15th, 2013, Justice W. W. Bradley of this court returned D.R. to his mother's care under a supervision order. In that decision (reported on at 2013 ONCJ 385) Justice Bradley was critical of the Applicant for its failure to carry out the Crown wardship order that A.G. and D.R. have sibling access. Justice Bradley also commented critically on the fact that A.G. had already been adopted by R.G. in the face of his access order.

[10] The Applicant and D.R.'s counsel soon recognized that the Applicant had not complied with the newly instituted openness sections of the Child and Family Service Act (hereafter referred to as the Act). They scrambled to try to correct the mistake but no voluntary openness arrangement was reached. The Applicant then moved before the court in 2015 seeking input on how to correct their error. My decision of July 30th, 2015, addressed that issue.

[11] The nuts and bolts of the role of the Office of the Children's Lawyer going forward was addressed in my endorsement of September 2nd, 2015.

[12] The parties then agreed to explore mediation and selected a mediator. That process stalled at the intake stage.

The Current Motions

[13] Counsel for A.G. and D.R. each moved for interim relief through mirrored openness orders. Each seeks an exchange of letters and such followed by face to face meetings between A.G. and D.R. They both advocate an interim order as allowing early steps to be tried out before any final determination of openness.

[14] Counsel for A.G. and D.R. submit that a court order is required to accomplish the necessary openness here. They submit that the respondent Ms. G. has shown by her past actions that without an order no meaningful access is likely.

[15] As noted earlier, counsel for S.M. does not seek an interim order here.

[16] The Applicant stands ready to help implement any order made here.

[17] R.G. submits that no interim order is necessary or proper on these facts, that the best interests of the children do not support a rush to contact, and that she of all the persons in the life of A.G. is the one best situated and suited to determine when A.G.'s interests are best served by a renewed contact with D.R. R.G. supports and understands that eventually, when A.G. is ready, A.G. will have contact with D.R. and others from her past. Right now however A.G. has enjoyed the most stability she has ever had in her short life and she is not mature enough to face the trauma of meeting her former family members at this time.

[18] More than anything, R.G. fears that any contact between D.R. and A.G. will inevitably lead to a re-introduction of K.A.A. into the life of A.G. This is a risk to A.G. that R.G. is simply unable to take.

Evidence Regarding the Children's Wishes

[19] Counsel for A.G. and D.R. rely upon social workers assisting them to narrate their contact with their respective child clients. A.G. was interviewed by her counsel in the presence of social worker Ms. de Munnick. D.R. was seen by his counsel with the assistance of social worker Mr. Reid. Each provides an affidavit supporting their respective and mirrored motions.

[20] A.G. presented initially as excited about the prospect of seeing her brother D.R., who she remembered. Later on she became more reticent about her views being made known to others, and her counsel respected those instructions.

[21] R.G.'s evidence notes spontaneous utterances by A.G. that she did not want to see D.R. and that her counsel and the social worker were not truthfully relating what she had told them about this subject. R.G. notes that there was very little contact between A.G. and D.R. once D.R. was moved from her foster home, and that the Applicant had properly exercised its discretion under the final Crown wardship order to deliberately reduce and then end any contact.

[22] D.R. recalls A.G. fondly and asked his lawyer to start up contact immediately. A drawing and letter prepared by D.R. is attached to Mr. Reid's affidavit as exhibit "A".

[23] R.G. submits that it is naïve to expect that D.R. will not talk about his mother K.A.A. once face to face contact is permitted, and A.G. will be crushed to hear that D.R. is living with K.A.A. while she is not. The unravelling of R.G.'s close bond with A.G. will then start to the extreme detriment of the child.

[24] R.G. submits further that there is a missing piece to this inquiry: the status of K.A.A. R.G. submits that the court needs to know what has been happening in the life of K.A.A. since the expiry of the supervision order in September of 2014. To this end R.G. would subpoena K.A.A. to testify at the trial here.

[25] In short, the moving parties believe that a court order is needed, now, to re-establish the access ordered on February 14th, 2011. R.G. submits that such an order would be premature and would not meet the criteria established in the Act. Such an order would interfere with the emotional health of A.G. and the decision is one that she, not the social workers, is best able to make. Eventually, when she decides that A.G. is ready, contact with her past family will be phased in. No time frame for such an event is currently foreseeable since A.G. is still only eight years of age.

Legal Framework

[26] The route to my jurisdiction to make the orders sought lies in subsection 145.1.2(10) of the Act. Subsection 145.1.2(6) provides for the making of an openness order based on two factors that are relevant to this case: (a) that the order is in the best interests of the child and (b) that the order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child. Subsection 145.1.2(10) however provides for the making of a temporary order which the court feels is in the child's best interests. In other words, the second level of inquiry of subsection 145.1.2(6) is not referenced in connection with a temporary order such as that sought here.

[27] The respondent Ms. G. submits that it is the 145.1.2(6) criteria that ought to apply and that the motion must fail on a consideration of both "beneficial" and "meaningful". Otherwise the temporary order creates a fait accomplis (my words not counsel's) since it is unlikely that once some contact is ordered it will be snatched away from the children again at a trial. This may be so, but I have to conclude on the plain wording of the section that the Legislature intended the arguably lower standard of best interests to be applicable to the temporary order regime.

[28] In the end however, I have no difficulty in concluding that, on either standard, the temporary orders sought here must be made in the best interest of both children individually and collectively.

Analysis: The Children's History

[29] Through no fault of their own, A.G. and D.R. have been dealt a pretty rotten hand by the many many adults in their lives. Let's canvas their recent history as disclosed by the evidence before me:

• D.R. is born to K.A.A. and R.R. in 2005;

• He is taken into care and eventually found to be in need of protection by an order dated April 8th, 2009;

• On the journey he has taken he finds his way to R.G.'s foster care;

• Meanwhile A.G. is born to K.A.A. and a different man in 2008;

• She is placed in the care of foster parent R.G. in March of 2010;

• From at least March of 2010 to February of 2011, D.R. and A.G. lived together with R.G.;

• On February 14th, 2011, A.G. is made a Crown ward and placed with R.G. as a prelude to her eventual adoption; D.R. is returned to the care of his father R.R.

• On February 14th, 2011, the court determined that D.R. and A.G. ought to have reasonable access to each other even after the final Crown wardship order; sibling access between D.R. and A.G. was to be arranged by the Applicant;

• Extraordinarily little access was organized by the Applicant, primarily, as Justice Bradley will later observe, because R.G. did not like the access and the Applicant did not act as they were required to do to facilitate the sibling access ordered by the court after a trial; the Applicant, perhaps, did not want to risk R.G. not continuing the adoption process then planned;

• The Applicant's last arranged access under the February 14th, 2011, order was in November of 2012;

• A.G. is adopted by R.G. in March of 2013;

• In his judgment dated July 15th, 2013, Justice Bradley severely criticised the Applicant for failing to comply with the order for sibling access; he noted (at paragraph 14) that "the Society worker stated that her primary concern was not to jeopardize the adoption [of A.G.] by the proposed adoptive parent. The adoptive parent [who can only be R.G.] made it clear from the outset that she was concerned about access because of possible interference by K.A.A." (interlineations added).

• Justice Bradley continues at paragraphs 15 and 16: "[15] The Society worker should have impressed upon the proposed adoptive parent, the court order for access and the expectations of the Society as to what reasonable access should be as well as the expectation of compliance with the Order. [16] In failing to do this, the Society set aside the existing beneficial relationship between [A.G.] and [D.R.] in order to continue the placement of [A.G.] with her proposed adoptive parent" (emphasis added). As His Honour noted, the adoption was at the cost of disregarding the relationship between D.R. and A.G. and he found it difficult to understand why the Applicant chose to permit the placement of A.G. in a home with a prospective adoptive parent who was so reluctant to comply with a court order for access.

• His Honour apparently did not know that the Applicant had also dropped the ball on the openness process legislated in the Act, which would have been the last clear chance to preserve the sibling access that the court had ordered;

• D.R.'s counsel and the Applicant noticed the mistake and tried to establish openness through the back door by an agreement with R.G.; that agreement was not forthcoming;

• A.G. and D.R. have not seen each other for almost four years, a feature pointed to by the Respondent to oppose a renewal of access now;

• The lack of access was in part by mistake and in part by design: by a reasonable extension of Justice Bradley's reasons, the Applicant's then Society worker, and the Respondent R.G., agreed that access between the children would not be helpful because it brought with it the risk that A.G. might have K.A.A. come back into her life to her detriment; the Applicant failed to adequately supervise its worker's implementation of the sibling access ordered by the court;

• K.A.A. is not a party to these proceedings (nor can she be) but it is reasonable to observe on the evidence before me and referenced by Justice Bradley that her past life as it relates to her child rearing skills, has been a wreck; the fear of R.G. that this person might come into the life of her daughter to A.G.'s detriment is not a mere chimera;

• While it was the duty of the Applicant to implement the final order for sibling access, R.G. made it known to the Applicant that she was opposed to any such access for fear of K.A.A.; that fear was referenced by Justice Bradley over three years ago and is still espoused by R.G. today in this proceeding;

• Indeed, it is hard to imagine that R.G. would be opposed to D.R. (who after all she had once fostered) seeing A.G. were it not for the baggage represented by K.A.A. with whom D.R. now lives.

The Court's Reasoning

[30] The solution to this dilemma is crystal clear when seen through the eyes of A.G. and D.R.

[31] The relationship between A.G. and D.R. was long ago determined to be a valuable relationship to be nurtured. This decision came after the evidence was tested in the crucible of a trial with a judgment that was then unsuccessfully appealed by K.A.A.

[32] Others in their young lives failed to carry out the direction of the court and the law to nurture that relationship.

[33] The mistakes of others cannot be visited upon these two children.

[34] Nothing before me now suggests in any way that this relationship is now one to be dismissed as voided by the mere passage of time.

[35] On the contrary, the reestablishment of their relationship, delayed by the acts of others, is both in their respective best interests and beneficial and meaningful to them both.

[36] On the evidence before me I find that A.G. and D.R. still know each other, even after four years apart and even after the trials and tribulations of those who by act or accident or the best of goodwill would keep them apart. D.R. was delighted to know that A.G. still lives and that he might once again come to know her as her big brother. A.G. too remembered D.R. and, based upon her current level of maturity saw a place for him in her life as a member of her family. The telling evidence is the evidence of how they each acted the first time these ideas came into the minds of each child. Only later when she started to perceive that R.G. disapproved of her seeing D.R. did A.G. start to back pedal.

[37] A.G.'s immediate optimistic response is a clear indication of the stability, skill and love that her mother R.G. has used to raise her over the last six years. R.G. is truly the best thing that ever happened to A.G.

[38] R.G., like all adoptive parents, went into her new parental role with eyes wide open and a full knowledge of the Adoption Registry and that A.G. might one day reach out in curiosity to her birth family. That day has come earlier than she hoped and wanted, but the law now understands that A.G.'s birth family is part of who she is and who she will be. It is unfair to block that literal birthright out of fear of the unknown.

[39] Now R.G. will have the hard task of making the restart of the past relationship of A.G. and D.R. a reality. This is not a task she will face alone, but it will be a tough and challenging job.

[40] All necessary steps to keep K.A.A. completely out of the picture here must be put into place. The same court that ordered sibling access removed any right of access by her to A.G. That, too, was unsuccessfully appealed. Removing any real likelihood of contact between her and A.G. effectively removes any reason for R.G. to oppose the contact between D.R. and A.G. Any risk that news of K.A.A. will leak past the process established here to prevent such a leak is very low compared to the significant benefit to A.G. and D.R. of mutual contact.

[41] Justice Bradley's order dated July 15th, 2013, prohibits contact between K.A.A. and A.G. There is no evidence that this order was ever breached by K.A.A.

[42] The idea that K.A.A.'s past and current life should impact A.G. and D.R.'s right to the contact a court ordered is simply not sustainable. Indeed, the suggestion that K.A.A. would be called to testify at a trial here would be the best possible opportunity for that person to try to become part of the life of A.G. again by conveniently offering her a forum to advocate just that.

[43] Regrettably, I cannot agree with the Respondent that this is a task that can wait until some unknown and unknowable time in the future when A.G. will be "ready" to have contact with D.R. The Jinn has escaped from the bottle and cannot be restored to it. To tease these children with the prospect of contact and to then withdraw that contact again would be, plainly put, wrong and against their best interests. Bright children such as these often have a deep grasp of what is "fair" in the schoolyard sense of the word. This delay would be unfair particularly when any delay to date has been created by adults in the face of a court order to the opposite.

[44] As pointed out by the Respondent in submission, young people today tend to communicate by technical means foreign to those of a past generation. These two children are, I think, still at the edge of the age when that will be their prime mode of discourse. Better to start communication the old fashion way now before computers and cell phones arrive, than for the children to open their own lines of communication through social media without the guidance of those who will help them bear with the tribulations of that contact now.

[45] Counsel for D.R. addressed in her suggested draft order the question as to whether R.G. ought to be at the meeting and suggested that only the visit supervisor, A.G. and D.R. ought to be there for the meeting. I believe that this may be unreasonably restrictive and that the cues to whether A.G. should be permitted to have a support person present should come from her. Notably no such restriction is advanced by A.G.'s counsel in her suggested draft order.

[46] The presence or absence of a support person, particularly for the vital first visit, may make or break that first visit or cast a pall on future contact. This would be so particularly if the visit supervisor is a virtual stranger to A.G. If A.G. needs a friendly face in the room for that visit she ought to be permitted that support even if her support comes from R.G. or another relative. The support person ought to be discussed between the parties and agreed to in advance, and any support person should be acquainted with their role at the visit – to support and comfort A.G. and encourage her to start the process of getting to know her brother again. In other words, to demonstrate that it is okay to meet and get to know her brother.

[47] What the adults in their lives have broken, the adults in their lives will now fix, because these adults have the broad shoulders to carry the weight of the risks inherent in the task. It is simply insufficient to say that Humpty Dumpty has now fallen and cannot be reconstructed. In this case he will be patched together as best the courts, the counsellors and R.G. and her family, can manage. With good will and love the repairs will suffice to take D.R. and A.G. into adulthood.

[48] To act otherwise would be a profound breach of trust and a betrayal of the duty this court and all the parties owe to A.G. and D.R. to act in their best interests.

[49] If it assists the parties, the children may be informed in a way appropriate to their age that the judge believes that this contact is important for both of them and that the judge is hoping to hear about how it went when the matter is next before the court.

Order

[50] In the event therefore, contact between A.G. and D.R. will be restored on a gradual basis as follows:

1. The original "letter" written by D.R. to A.G. shall be delivered to her immediately;

2. D.R. and A.G. shall exchange cards, letters and drawings. These shall be vetted by the Applicant to give effect to these reasons and to prevent any contact between K.A.A. and A.G. directly or indirectly. No social media or electronic contact between A.G. and D.R. shall be permitted at any time;

3. The parties shall support and encourage the exchange of letters, cards and drawings by D.R. and A.G. such that the children understand that this contact is supported by the adults in their respective lives;

4. A.G. shall be supported as needed by such counselling as may be arranged between the Applicant and R.G.;

5. A.G. and D.R. will have a face to face meeting in the first half of November, 2016, or at such earlier time as may be agreed to between the parties. Subsequent meetings shall be as arranged between the parties on dates suitable to the progress made by A.G. and D.R. in getting to know one another again;

6. The parties shall support and encourage the one on one meeting(s) of A.G. and D.R. such that the children understand that this contact is supported by the adults in their lives;

7. The first meeting and all subsequent meetings between A.G. and D.R. shall take place in a neutral safe place agreed to between the parties. The Applicant shall arrange for the venue where the meeting shall take place and shall provide supervision to give effect to this endorsement. Any supervision notes shall be shared with the parties.

8. A.G. shall be permitted a support person for the first visit at the least. Any support person shall provide encouragement, comfort and support to A.G. but shall not interfere in the visit that this court has ordered. For clarity, the support person may be R.G. or her mother;

9. No contact, directly or indirectly, is permitted between A.G. and her biological parent, K.A.A. D.R. should be told in a way conducive to his age and experience that the visits and other contact are between him and A.G. and that contact will be suspended if contact with K.A.A. takes place;

10. Adjourned to October 5th, 2016 at 9:30 am for update. Parties may appear by agent if required.

Justice Bruce E. Pugsley OCJ at Orangeville