WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsubsections 87(7), 87(8) and 87(9) of the Act. These subsubsections and subsubsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsubsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsubsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: September 9, 2019

Court File No.: C 54274/11

Between:

Catholic Children's Aid Society of Toronto Applicant

— AND —

A.P. and E.S. Respondents

Before: Justice Roselyn Zisman

Heard on: August 22, 2019

Reasons for Judgment released on: September 9, 2019

Counsel

Marshall Matias — counsel for the applicant society

Dorothea Dadson — counsel for the respondent father E.S.

No appearance by or on behalf of A.P. and found in default

ZISMAN, J.:

Introduction

[1] The Catholic Children's Aid Society ("CCAS" or "the society") commenced a Protection Application with respect to the child J.S.P. ("child, the baby or the daughter") who is presently 9 months old. The society sought a finding that the child was in need of protection pursuant to subsections 74 (2) (b) (i) and (ii) of the Child, Youth Family Services Act ("CYFSA") and for an order that the child be placed in extended society care with no access.

[2] The Respondent A.P. is the biological mother. She is 37 years old.

[3] The Respondent E.S. is the biological father. He is 58 years old.

[4] According to the mother, she and the father had been friends for a while and had been in a relationship. But the mother was not sure they were still in a relationship as she had not had any contact with the father for several months prior to the birth of the child.

[5] The child was apprehended at birth. The mother herself advised the hospital staff to contact the society.

[6] A Protection Application was issued on November 6, 2018 seeking an order of extended society care with no access.

[7] The Protection Application was based on the mother's long history of cocaine addiction and incarcerations. The mother admitted that she had not received any pre-natal care and had used drugs daily while pregnant with this child. The mother has three other children. One child was placed with his biological father and the other two children have been adopted.

[8] On November 6, 2018 a temporary without prejudice order was made placing the child in the care of the society with access to the parents at the discretion of the society. On that date, the society had not yet served the mother who it could not locate and needed further information to locate the father.

[9] On December 19, 2018 the society advised the court that the mother had been served on December 14th. The mother did not attend court. Service on the father was still outstanding.

[10] On February 28, 2019 the society advised that the father had been served on January 7, 2019. The father was incarcerated and the mother had just been released from jail. Neither parent or counsel on their behalf attended court. The matter was adjourned as the society had some information that the child may be First Nations, Inuk, or Metis.

[11] On April 3, 2019 the mother was not present. The father attended court and was assisted by duty counsel. Although the father was technically in default, the society agreed that the father be permitted to file his Answer and Plan of Care. Further, as the father questioned if he was the child's biological father, the society agreed to arrange paternity testing. The society was still investigating if the child was First Nations, Inuk or Metis.

[12] On May 28, 2019 the matter returned to court. The mother was again not present.

[13] The paternity testing had confirmed that the father was the child's biological parent. The father was not in attendance, but his counsel attended. No Answer or Plan of Care on behalf of the father was filed despite being granted an extension to file his pleadings. The society sought to note both parents in default and proceed on an uncontested basis.

[14] Based on the affidavit filed by the family service worker Paula Tavares, the court determined that the child was not First Nations, Inuk or Metis.

[15] Both parents were noted in default. Although the father had not filed any pleadings he was exercising access.

[16] On June 11, 2019 the society filed a Notice of Motion and affidavit of Ms Tavares, the family service worker, for an order that the child be placed in the extended care of the society with no access.

[17] Both the father and his counsel were in attendance. The father agreed that he was not able to present a plan to care for the child but he sought access.

[18] On an unopposed basis and based on Ms Tavares' affidavit, the Statutory findings were made and the child was found to be in need of protection pursuant to subsections 74(2) (b) (i) and 74 (2) (b) (ii) of the CYFSA. There was also an order that the child be placed in the extended care of the society.

[19] Although the affidavit of Ms Tavares set out some facts in support of the society's position that there should be no access to the child by either parent, the court indicated that it required further evidence on the issue of access.

[20] It was agreed that there would be a focused hearing regarding the issue of access. Counsel for the society indicated that he would file an affidavit from the adoption worker and possibly the foster mother.

[21] On consent it was agreed that father's counsel would be provided with copies of the society notes regarding the father's access.

[22] The court also advised father's counsel that it was prepared to set aside the noting in default of the father and permit him to file pleadings and a responding affidavit. A timetable for the filing of materials was set out.

[23] The hearing proceeded on August 22, 2019. The society relied on the affidavit of the adoption worker Andrea Stack, sworn July 31, 2019 and the father relied on his own affidavit sworn July 18, 2019.

[24] The father did not file an Answer and Plan of Care. Both Ms Stack and the father were permitted to provide brief oral evidence to update their affidavits and both were subject to cross-examination.

[25] The society continued to seek an order that neither parent have access and that the child be placed for adoption.

[26] It was the position of the father that his current weekly supervised access for one and half hours continue.

[27] Accordingly, the only issues for the court to determine are:

1. Is an order for access between the child and his father and/or his mother in the child's best interests?
2. If so, what order of access is in the child's best interests?
3. If an access order is made, who should be the access holder?

Background Facts

[28] As the finding in need of protection and disposition (except with respect to the issue of access) proceeded on an unopposed basis and without any pleadings being filed by either parent, the materials facts of the case are not really in dispute.

[29] To consider if access by the father or the mother is in this child's best interests it is necessary to understand the background of both parents and the basis of the finding of the need for protection.

[30] The mother has an extensive history with the society both as a child and as an adult. The mother was made a Crown Ward and reported that she had been diagnosed with FASD because her mother drank when she was pregnant with her.

[31] The mother has been using crack cocaine since she was 17 years old that is, for at least the last 20 years. She used crack cocaine during her pregnancy and as recently as the day before she gave birth.

[32] The mother was in and out of jail from January 2005 to November 2007 and has a criminal record including charges of assault and drug related offences. Her first child was born while the mother was incarcerated. The baby was apprehended and eventually adopted.

[33] The mother's second child was born in 2008 and removed from the care of the parents in 2011 due to concerns about the child's safety and the mother's drug use. The child was eventually placed with his father and custody was granted to him in 2013.

[34] The mother gave birth to her third child in 2013 while she was again incarcerated. She was in jail with respect to charges of robbery and assault. The baby was apprehended and eventually adopted.

[35] When the mother found out she was pregnant with this child, she stated that she tried to forget she was pregnant. She had no prenatal care and continued to use cocaine daily but tried to reduce the amount she used.

[36] The mother met with the society intake worker and advised her that she had been evicted in August 2018 and since then she had no fixed address and had been staying with a friend, sleeping in coffee shops or at the library.

[37] The mother was not prepared to provide the intake worker with much information about the child's father until she was able to speak to him and advise him of the child's birth.

[38] The mother advised that she knew that she could not care for the baby. The intake worker advised the mother of the changes she would need to make in her life to have the baby placed in her care. The mother stated that she was not sure that she wanted the baby with her but she wanted to have photos if the baby was placed for adoption.

[39] Shortly after the mother's discharge from the hospital, she was again incarcerated. Paula Tavares, family service worker met with her at Vanier Centre for Women on December 14, 2018.

[40] The mother advised that she wished her daughter placed for adoption with the same family that had adopted her son, J.

[41] The mother provided the name of the father and stated that he was also incarcerated next door to her at Maplehurst Correctional Complex and had been there for several months.

[42] The mother spoke openly to the worker about her addiction issues, her mental health and a head injury she suffered because of jumping from a balcony in an attempted suicide. The mother expressed a plan to obtain treatment upon her release from jail.

[43] On January 18, 2019 the mother contacted Ms Tavares to advise she had been released from jail and asked for her to arrange an access visit. However, Ms Tavares was unable to contact the mother to arrange for the visit despite attempts by phone, e-mail and a search for her address through social assistance. The mother did not contact Ms Tavares again and has never had access to her daughter.

[44] On January 7, 2019, Ms Tavares attended at Maplehurst Correctional Complex and met with the father. She advised the father that the mother's hope was that the child be adopted by the family that had adopted her son. Ms Tavares advised the father of the importance of meeting the court deadlines and presenting a plan for his daughter.

[45] The father advised that he wanted to plan for his daughter. He was not sure when he would be released as he believed he faced other charges. He advised that he was presently in jail due to theft charges.

[46] The father admitted that he also had addiction issues. After his release he hoped to enter treatment, reunite with the mother so they could plan for the baby together. Ms Tavares questioned him about the validity of his plan given that both he and the mother were incarcerated and there were concerns about addiction issues, mental health and transiency.

[47] Ms Tavares also inquired about possible kinship plans and the father advised that he has limited contact with his family but he would think about it and reach out and have them contact her. No family member contacted Ms Tavares.

[48] On March 29, 2019 the father contacted the society and advised he had been released from jail and wanted to make arrangements for access. Ms Tavares returned the father's call and confirmed that she would arrange for access. When asked about his living arrangements, the father advised that he was staying with a friend.

[49] Ms Tavares also inquired again about any possible kinship plans and the father advised he would bring the information to court.

[50] On April 3, 2019 at the court attendance the father provided the names and contact information of 4 family members. At the father's request it was agreed that a paternity test would be arranged.

[51] On April 10, 2019 Ms Tavares provided the father with a new set of court documents as he advised her that he had fallen asleep at a Tim Horton's and lost his court documents. When asked for his address again, the father would not provide it but said he stays with friends.

[52] When asked about his treatment plan, he stated that he was working on it. He stated that he was sober but struggling with his sobriety.

[53] He advised that he was trying to locate the mother so she could come to an access visit. Ms Tavares strongly discouraged the father from doing this as he was struggling with his sobriety and seeking out the mother in locations where drug use was occurring. Although he agreed, in subsequent conversations he disclosed that he was still looking for the mother. The father was advised that the mother could not simply show up at his access visit and she would have to contact the society worker.

[54] A plan of care meeting was scheduled for April 26th, to accommodate the father attending. The father did not attend. He called later in the afternoon to say he was not coming and was informed that the meeting had already been held in the morning.

[55] With respect to any kinship plan, Ms Tavares contacted two of the father's adult children who advised that they still lived with their mother, were not able to plan for a baby at this time in their lives and that they were not close to their father. They did not know any other family member who might take on that responsibility.

[56] Ms Tavares made further inquires and located a paternal cousin and the father's brother in law. She left messages for both but neither returned her call.

[57] With respect to the baby, she was born premature at about 33 weeks. The exact date was not clear as the mother had not had any prenatal care. The baby was placed in intensive care after her birth. To date she is growing and developing well. There are no specific concerns at present.

Father's Access

[58] The father began access on April 10, 2019. His access occurs once a week supervised in the society's offices. Initially the visits were for 1 hour and then increased to 1.5 hours.

[59] From April to July 3, 2019 there were 14 visits scheduled. The father cancelled 1 visit and did not attend for 3 visits. He was between 15 minutes to 1 hour late for 4 visits.

[60] As of July 3rd, the father was required to call and confirm his attendance by 8:45 a.m. that same day as the father had not attended the July 3rd visit and the child was travelling 2 hours to and from the visit.

[61] From July 10th to July 31, 2019, there were a further 4 visits scheduled. Two visits were cancelled as the father did not call to confirm the visits. On July 31st, the visit was cancelled as the father did not call by the set time. But as he called later and requested a visit, the society agreed. The father attended the visit 20 minutes late.

[62] Andrea Slack, the adoption worker testified that since deposing her affidavit of July 31st, there had been 3 more visits scheduled on August 7th, 14th and 21st. The father did not attend on the visit of August 7th and did not call to confirm the visit so it was cancelled.

[63] In the father's oral testimony, he explained that he missed the visit of August 7th as he had been in Ottawa visiting friends and working and arrived late back in Toronto.

[64] But in cross-examination he admitted that he had arrived in Toronto at 6:30 or 7:00 a.m. the day of the visit. When asked why he did not call to confirm the visit, he then said that he lost his cell phone and did not know the society's telephone number. When asked if there was a telephone booth at the bus station or why he had not called information to obtain the society's number, he said that his only thought was to go home and sleep.

[65] With respect to the visit on August 14th the father arrived 40 minutes late for an hour and half visit.

[66] With respect to the visit on August 21st the father arrived 50 minutes late for his hour and a half visit.

[67] The father's only explanation regarding these visits was that he had car trouble.

[68] The father deposed that he missed visits on July 10th and 17th because he was working out of town in Orillia. He did not explain why he would not have called the society to advise why he was not able to attend the visit or why he did not ask to reschedule his visit.

[69] In his affidavit he only offers an explanation about those 2 missed visits. In cross-examination his recollection was vague about missing any other visits. He does not explain why he was late to visits except to say that he tries his best to be early. He deposed that on the May 15th visit, although he was late he did mange to have some time with the baby and apologized to her for being late.

[70] In total, the father had the opportunity to attend 21 visits, he attended 14 visits or only 67%. Of the visits he attended he was late 7 times or 50% of the time.

[71] With respect to the quality of the father's access visits, the family service worker deposed that he presented as an inexperienced parent that required hands on assistance and teaching around the feeding, warming up formula and diaper changing. He appeared to enjoy the visits and would often speak gently to the child and would take videos and photos of her.

[72] In the father's affidavit he describes the visits as being enjoyable and that it appears that his daughter recognizes him. He describes learning to change her, feed and burp her. The father expressed his love of his daughter, playing with her and watching her development as she acquired new skills.

Evidence of the Adoption Worker

[73] Andrea Slack has a Master of Social Work degree and has been employed by both the Children's Aid Society and the Catholic Children's Aid Society for 13 years. She has worked as a family service worker and a child service worker. For the last 7 years she has worked as an adoption worker.

[74] Ms Slack confirmed that prospective adoptive families are educated about the changes in the legislation, openness orders and the importance of an adopted child maintaining their connection to their birth family. Typically, this has been achieved through life books, social histories and annual letters and photos.

[75] If there is an order of parental access made at the time of the extended society care order that results in post adoption openness, the society will facilitate and support the contact during the adoption probation period. However, once the adoption is finalized, the parties must be willing and able to arrange and maintain that post adoption contact on their own.

[76] As a general policy the society makes it a priority to place siblings together. As in this case where there is a sibling born several years later who becomes available for adoption, the older sibling's adoptive parents are the first ones considered for placement in the hope that the siblings can grow up together.

[77] The society is also committed to placing children in adoptive homes that reflect their racial and cultural heritage. Traditionally there have not been a large pool of available Black and biracial adoptive families. In this case the child is biracial. This will reduce the number of racially and culturally matched families available to be considered for adopting this child. Adding an openness order that requires personal contact will then further reduce this pool of applicants.

[78] Further based on Ms Slack's personal experience and that of her colleagues, she deposed that it typically takes three times as long to place a toddler for adoption when an openness order requires face to face contact with a birth parent. Ms Slack testified that she recently experienced delays when placing a one year old who had contact with a maternal grandmother and aunt. Although she was ultimately successful in placing the child for adoption it took 17 months of child targeted recruitment after the extended society care order had been made.

[79] In cross-examination, Ms Slack agreed that she was not stating that it is impossible to place a child with an openness order requiring face to fact contact but that it is more difficult and takes longer to do so.

[80] It was Ms Slack's opinion based on her experience that many prospective adoptive families would be reluctant to agree to face to face contact with the father in view of his lengthy criminal record, long standing substance abuse issues and his history of inconsistent access. Further, based on the society records he does not have a significant relationship with any of his children and his challenges appear to have impacted his ability to maintain his relationship with his older children.

[81] Ms Slack also deposed that based on her personal experience and that of her colleagues even once a family is comfortable with face to face contact is identified, there is a further delay to work out the details of the terms of openness, at times involving the court before the adoption preplacement process can even begin. During this time, families have withdrawn their adoption plan and ultimately the permanency for the child is impacted.

[82] In this case, the prospective adoptive family have indicated that they are interested in adopting this child who would then be raised with her half sibling. The prospective adoptive parents are racially and culturally matched to this child who is biracial. The prospective adoptive mother is white, the prospective adoptive father is black and Jamaican.

[83] However, the prospective adoptive family is not prepared to adopt this child if there is an access order. As their son does not have openness with his parents they would not adopt another child with an openness order. They are concerned about the impact this may have on their son. They believe that if this child had contact with her father while their son does not have any contact with his birth parents that he would invariably develop feelings of rejection.

[84] Although there is no openness order with respect to their son nevertheless the prospective adoptive parents are prepared to have contact with the birth family through the exchange of information and photographs to be delivered through the society. They are prepared to undertake to maintain the same type of contact with this child's birth family but not face to face contact. It is their belief that this would allow this child and their son to have information about their adoption, their birth parents and birth family's history and of their own history.

Applicable Legal Considerations

[85] Subsection 104 of the CYFSA sets out the court's powers in relation to access. It reads as follows:

Access orders

104 (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsubsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[86] Subsection 105 (4) of the CYFSA states that where the court makes an order that a child be placed in extended society care under paragraph 3 of subsection 101 (1) or under subsection 116 (1) (c), any order for access made under Part V of the CYFSA with respect to the child is terminated.

[87] Subsections 105 (5) and (6) of the CYFSA set out when the court can make or vary an access order to a child placed in extended society care. Those subsections read as follows:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child's best interests

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[88] The approach to access for a child placed in extended society care has significantly shifted since the passage of the CYFSA and the guidance provided to the interpretation of the amendments by the Ontario Court of Appeal in the case of Kawartha-Haliburton Children's Aid Society v. M.W. ("Kawartha").

[89] Prior to the Kawartha decision there was some debate in the case law about whether the legislative changes regarding access to children in extended society care should be interpreted narrowly or broadly. That issue has now been resolved.

[90] The Court of Appeal in Kawartha outlined the effect of the changes in the legislation regarding access to children in the extended society care as follows:

(a) The changes to the access test are significant (par. 47).

(b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).

(c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities (par. 49).

(d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).

(e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).

(f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49).

(g) The court should reference the best interest considerations in subsubsection 74 (3) of the Act in making its decision (par. 53).

(h) The "presumption against access" to "Crown Wards" test no longer exists (par. 53).

[91] The best interests factors set out in subsubsection 74 (3) CYFSA now have significant importance under the new access test. That subsubsection reads as follows:

Best interests of child

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Discussion

[92] I agree with the analysis in the cases subsequent to the legislative changes and as a result of the Kawartha decision that the overall test for access to a child in extended society care should be given a liberal and flexible interpretation and that the court should take a holistic approach and consider any factors it considers relevant.

[93] The overall test is now what order is in the child's best interests. Whether the child's relationship to a parent is beneficial and meaningful and whether an access order would impair a child's opportunities for adoption are additional factors of the many other factors that a court should consider.

[94] Although the onus is still on the father in this case to satisfy the court that an access order is in the best interests of the child, there is no longer a presumption against access and the court is not constrained by the previous narrow pre-CYFSA case law in making this determination.

[95] I adopt the reasons of Justice Stanley Sherr in the case of Children's Aid Society of Toronto v. J.G. at paragraph 81 where he wrote as follows:

When a court considers a child's best interests it should considers all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions—there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children.

[96] The pre-CYFSA case law determined that it was improper to import considerations of openness into the beneficial and meaningful test. The court was to determine if the child and parent relationship was beneficial and meaningful to the child based at the time of the hearing.

[97] However, given that the test is now the overall best interests of the child, a more comprehensive assessment is required that may include considerations of the impact of an openness order.

[98] Although a child can now be placed for adoption with an access order the court should not be required to ignore the reality that access orders especially for younger children who are readily adoptable may transition into openness orders.

[99] Subsection 105 (7) of the CYFSA deals with this possibility as the court is required to name who is an access holder and who is an access recipient when an order is made for a child to be placed in extended society care.

[100] This subsection is important as only the access holder has the right to bring an openness application if the society files a Notice of Intention to place the child for adoption pursuant to subsection 195 of the CYFSA. The access recipient does not have the right to bring an openness application. The access recipient only has the right to be served with the society's Notice of Intent to place a child for adoption. Therefore, in crafting any access order to a child placed in extended society care the court must also consider who is to be an access holder and who is only to be an access recipient.

[101] Subsection 194 (4) of the CYFSA provides that the court may make an openness order if it is satisfied that such an order is in the best interests of the child and such an order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child.

[102] The case law is clear that openness is not access. There is a qualitative difference between the amount of contact a party will have with the child before and after an extended society care order is made, and then again after a child is placed for adoption and an openness order is made. The granting of an extended society care order means the end of any effort to return the child to the parent's care. Part of the reason for access prior to an extended society care 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 an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[103] It is important for the court to consider not only the potential benefits but also the potential detriments of an access order that may transition to an openness order in determining a child's best interests.

[104] In support of the father's request for ongoing supervised weekly access, his counsel relied on the case of Justice Anthony Sullivan in Children's Aid Society of the Region of Peel v. J.F. where the court ordered access by the mother to her 19-month-old twins at the discretion of the society with both the twins and the mother being access holders. It was submitted that this order was made even though the mother had a history of inconsistent access and concerns of substance abuse. There were findings of fact that the access was beneficial and meaningful to the twins and the mother had access to another child in care of kin without any interference. I would note that in that case, the court found that the mother had been exercising access for almost two years, the children had a connection with their other sibling and no specific adoptive family had been identified.

[105] Although mother's counsel did not refer to the case of Justice Stanley Sherr in Children's Aid Society of Toronto v. J.G. the court had previously brought the case to the attention of both counsel. In that case, access had been ordered to a 15-month-old infant. The mother had been exercising consistent access for about 8 months, one of the mother's other children was placed with the same foster mother who wished to adopt the child before the court as well as the mother's other child. There was no evidence that the foster mother would be dissuaded from adopting if there was an access order. Further, the society agreed that the mother's access was beneficial and meaningful for the child and supported some limited supervised access.

[106] In the case of Children's Aid Society v. Y.M. the court ordered access to an 18-month-old infant to both parents despite the parents being litigious, difficult and dishonest, having limited insight into the protection concerns and unsupportive of an adoption. In that case, the society supported some limited access by the parents and sibling access. There was also no known adoptive family.

[107] Although this court adopts the law as set out in these cases, as in any case involving decisions regarding the best interests of a child, the court needs to apply the law to the particular facts of the child before the court. The cases mentioned above are distinguishable from the facts in this case.

[108] The application of the facts to the law is vitally important in these cases as courts are attempting to predict how ongoing access may be in a child's future best interests.

[109] Although the changes in the legislation and the analysis in Kawartha has shifted from the pre-CFSA rigid test of parents almost never being able to meet the onus on them to a presumption that "access should be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests".

[110] However, there is a lack of much evidence in the reported cases regarding the impact of an order of access on the particular child's future stability and its emotional well-being. It appears that assumptions are being made about the future benefits of ongoing access that may morph into an openness order, the details of which can be sorted out or further pursued in openness applications. There is little if any evidence being presented about the impact of an access order on the potential pool of adoptive families.

[111] There appears to be little if any evidence being provided about the impact on the prospective adoptive family of being required to be involved in further litigation if the adoptive family does not agree with the position of either the parents (if they are the access holders) or the Office of the Children's Lawyer which is appointed to represent children who are access holders on openness applications.

[112] As almost all infants and toddlers are placed for adoption, any prior access order will terminate in accordance with subsection 105(7) CYFSA and then an openness application will be commenced. It is not known how many of these adoptions are unduly delayed or break-down because of protracted openness applications.

[113] This is the type of evidence that the societies should be collecting so that the court is not making access orders in a vacuum.

[114] In this case and in most of the caselaw there is only some anecdotal evidence from the adoption worker. The society adoption department should be collecting statistics regarding these issues.

[115] I note that in the cases that have been reported there is no evidence about how access will be arranged after a child is adopted.

[116] At the time of the trial, the society arranges access and continues to do so until a child is placed for adoption and the adoption probationary period is completed. However, thereafter if there is an openness application the adoptive family would be responsible for making those arrangements directly with the access holder as the society is no longer involved.

[117] For example, there is no evidence being provided as to whether a supervised access centre would be amendable to permitting the limited 2 to 4 yearly access visits that appear to be generally ordered. No evidence is being provided about the actual details of setting up, scheduling, paying for the visits and the rules around conduct during the visits. The assumption is that these details will be worked out on an openness application. There is no evidence about how contact will be maintained especially if the access holder has a history of transience. What is the obligation of continuing access especially if there is a history of inconsistent access? How long does the adoptive family need to wait if the access holder is late? It is assumed by the court that these practical difficulties will be sorted out in the future.

[118] However, even if a court determines that access is beneficial and meaningful, the court is being asked to predict if access will impair adoption and if it is in a child's best interests. At least some of this information should be made available at the hearing regarding access so that the court can assess if an access order will be in the child's future best interests. It is also information that a prospective adoptive family may wish answered as it considers if it will be prepared to agree to ongoing contact with an access holder. It appears more and more inevitable that there will be protracted openness applications. It makes much more practical sense for the court to be provided with some preliminary evidence of how access to a child in extended society care would be arranged once the society is no longer involved.

Is Access Between the Child and the Father and/or the Mother Beneficial and Meaningful?

[119] I adopt the reasoning of Justice Michael O'Dea in the case of Family and Children's Services of Guelph & Wellington County v. T.S. regarding the interpretation of the terms "beneficial and meaningful." Nothing in the wording of the CYFSA appears to bar the court from applying the prior interpretation of the "beneficial and meaningful" criteria. However, given that this criteria is not more important than the other criteria in subsection 74 (3) of the CYFSA, an interpretation of access being "positive" and "important" is more consistent with the overall balance of the subsection 74 (3) considerations.

[120] The mother has not had any access to the child so clearly any visits by her would not meet any interpretation of the terms beneficial and meaningful.

[121] With respect to the father's access, the visits are positive in that the father is affectionate and attentive. The child enjoys the visits. The father with some assistance has learnt to meet the child's basic needs. But the father has only attended 14 visits out of potentially 21 visits over four months and has been late for many of the visits.

[122] Given that the child is only 9 months old and the limited number of the father's visits, it is unlikely that at this time the visits are important to the child.

[123] There is the possibility that over time the visits could become important to the child as a connection to her birth parent, helping her understand her roots, having another person in her life that loves her and the possibility of obtaining more medical and family history. These are the general considerations that judges who have ordered access to young toddlers have relied upon.

[124] On the other hand, there is the opposite possibility that the visits would not be important to her as she might not feel the need to have that biological connection or that having limited access to a birth parent would not provide her with any more information than she already has about her birth history. It is totally speculative as to whether access to young infants or toddlers to a member of their birth family will be important in that child's future.

[125] However, it is consistent with the legislation and the analysis in the Kawartha decision that if a child can maintain a connection with its biological roots without jeopardizing the security of a permanent placement that is an option that the court should consider.

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

[126] Pursuant to subsection 105 (5) of the CYFSA, the court must inquire whether an access order would impair a child's future opportunities for adoption, if relevant.

[127] In any case with infants and toddlers, this issue will always be relevant. Permanency planning should not be delayed.

[128] Unlike most of the other cases that have been cited, in this case, there is a prospective adoptive family that is prepared to adopt this child if there is no access order.

[129] It is possible that another family could be found. But based on the evidence of the adoption worker, this would result in the child remaining in care for at least three times the average amount of time needed to find an appropriate adoptive home that is prepared to adopt with an order for face to face contact with the birth father and that is also racially and culturally matched to this child.

[130] The court needs to balance the benefit of this proposed adoption with the delay that would be occur as the society seeks another adoptive home that would agree to face to face contact with the father.

[131] In the case of Children's Aid Society v. A.F., the court discussed the attributes of a parent that would impair a child's future opportunities for adoption. They are as follows:

1. The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

2. The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

3. The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

4. The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[132] In addition to these criteria I would add a further criterion:

A person with a mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact and as a result dissuade adoptive parents.

[133] In this case, much about the father is unknown as he revealed very little information about himself in his affidavit and he has only been involved with the society for the last four months. It is therefore difficult to predict if based on his personality he is likely or not likely to impair the child's opportunities for adoption.

[134] The father has not been aggressive or angry with the society workers or the foster parent. The father has been respectful of the child's current foster mother and even sent her a note appreciating the care she has provided to the child. However, she is not a threat to him as she is accommodating his weekly access and is not planning to adopt the child. It is unknown whether he would have the same positive interaction with adoptive parents who were not prepared to accommodate his request for weekly access and are only agreeable to a few yearly visits.

[135] The father's request that his ongoing weekly supervised access continue does not appear to recognize that his relationship with the child will now change as she transitions to a permanent home. It is therefore unknown if he would be supportive of any prospective adoptive placement if his access was significantly reduced.

[136] The father admitted that he had been in and out of jail for the last 10 years. Many of these offences relate to honesty and non-violent crimes such as offences of theft and fraud. As a result and despite his criminal history, he may not be a threat to the safety of an adoptive family. The father has been somewhat secretive with the society with respect to his living arrangements.

[137] The father to date has not been litigious but it is not clear if he would accept a reduced role in the life of the child.

[138] The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Penny Jones in Catholic Children's Aid Society of Toronto v. L.D.E. as follows:

Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

(a) They would be facing further litigation

(b) They would not know the result of such litigation

(c) They would not know what form an openness order might take

(d) If an openness application is brought, the adoption will be delayed

(e) If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the society unless the society agreed to become involved

[139] I would add a further consideration namely, the impact of an openness order on other siblings in the adoptive home, as in this case.

[140] In this case, if the father is granted access then the society would need to search for another family who is willing to accommodate face to face contact with the father.

Consideration of Other Best Interests Criteria Under Subsubsection 74 (3) of the CYFSA

[141] The court has considered the remaining best interests factors set out in subsubsection 74(3) of the CYFSA as follows:

(a) The child is too young to ascertain her views and wishes;

(b) An access order would not impair the child's physical needs. However, it is unknown if an access order would impair her mental or emotional needs. Many of the cases appear to assume that access could help the child in developing a deeper understanding her identity. However, it is just as possible that such access could be confusing and undermine the child's secure placement in her adoptive home. This would be a concern if the parent did not support the placement. Further, if the parent was inconsistent in attending access the child may be disappointed. There was no evidence presented in this case about the possible impact on the child of ongoing access or terminating access. I further note that in none of the cases that the court reviewed is there anything but a bald statement by the court as to the presumption that access would not impair the child's mental and emotional needs. There is also an assumption that the biological parent would be capable of providing the child with a deeper understanding of her identity whereas many of the birth parents have serious limitations and are coping with their own personal issues and as a result may not have the capabilities of imparting such knowledge to the child;

(c) An access order is unlikely to interfere with the child's physical, mental or emotional level of development. The cases assume that not only would access not impair a child's development but could be useful in assisting in obtaining medical and family history. In this case, the society has been involved with the mother for many years both when she was a child and made a Crown Ward and as an adult. The society therefore has a great deal of information about the mother's medical and family history. With respect to the father he has not been forthcoming with the society about himself and his history and it is not clear that he would be prepared to provide any further information in the future;

(d) An order of access would enable the child to maintain her cultural heritage. However, in this case, which sets it apart from the other cases, a racial and cultural match has been found and the prospective adoptive family can maintain the child's heritage;

(e) If the child is placed with the prospective adoptive family she will be able to be raised with her half sibling. If the child is placed with another adoptive family she will not be able to have any contact with her half sibling as that child has been adopted and he does not have access to any of his birth family;

(f) The child will need to be moved from her foster home either to the proposed adoptive home or to another adoptive home. The proposed adoptive parents are prepared to permit ongoing contact to the child's foster family as they have done with their son's former foster family. It is their experience that such contact is not confusing to their son as the roles are clear namely, that she was their son's foster mother, considered "family" but they are his parents and the foster mother is able to respect the boundaries. They do not believe the same type of clarity can be achieved with the birth father. As the child has lived in the same foster home almost since birth such ongoing contact would assist with a transition to an adoptive home;

(g) The child will suffer little risk of harm if there is no access to her birth father as she has had such limited contact with him;

(h) The risk of harm that required the child to be placed in society care mainly related to the mother. However, it also related to the father who was not available to the child as he was incarcerated shortly before the birth and remained in jail for the first several months of her life. Although the father has conceded that he is unable to care for the child, he initially told the society worker that he wanted to find the mother and plan with her. This shows a lack of insight into the issues that required the child to be placed in the care of the society. He failed to attend a plan of care meeting so he could better understand the protection issues. The father has only been out of jail for several months and he states he has been free of drugs since he was incarcerated. But in view of his lengthy history of both substance abuse and criminality there is unfortunately a possibility that he will revert to his prior lifestyle and such a lifestyle could pose a risk to the child;

(i) It is undisputed that if an access order is made to the birth father, this child's placement for adoption will be delayed. The society will not only need to find a family that is racially and culturally matched but also a family that is prepared to agree to face to face contact with the birth father. Any adoption would be further delayed as the details of an openness order are worked out; and

(j) The society's plan is for the child to be placed in a racial and culturally appropriate home with her half sibling and with adoptive parents that have a proven ability to provide a secure, stable and consistent home environment. The mother has requested this placement. Such a placement will not result in any delay in permanent planning for this child. The prospective adoptive family has undertaken to send letters and photos to the birth family. In contrast, the father seeks a continuation of his weekly supervised access. There is a serious concern about whether he will be able to maintain consistent access when he has failed to do so in the past. There is a serious concern that he will not be able to maintain ongoing contact with an adoptive family when he has no permanent residence, does not have consistent access to his cell phone and has a history of instability.

[142] In balancing all of these factors it is the best interests of this child that there be no order as to access.

[143] I have considered if there should be an order requiring the prospective adoptive parents to provide the parents with letters and photos. Although not required by any court order to do so, the prospective adoptive parents have continued to send the mother letters and photos of their son for the last two years even though the mother has not contacted the society to obtain those letters and photos. They can be trusted to do so with this child. The society on their behalf has undertaken that the prospective adoptive parents will provide the father with similar updating letters and photos.

[144] I have also considered whether an access order should be made with the child being the access holder and with any access being in the child's discretion. However, such an order may trigger an openness application by counsel from the Office of the Children's Lawyer. Potentially this could result in the prospective adopted parents being involved in litigation initiated by counsel for the child who takes a principled position that all adoptive children should have some access to their birth parents.

[145] In this case, the prospective adoptive family can be trusted to act in the best interests of this child and arrange for the child to have contact with her birth family in the future if they deem it to be appropriate.

[146] Although I appreciate this decision will be difficult for the father to accept, I am hopeful that he will come to appreciate as the mother has already done, that his daughter should be given the opportunity to be raised with her half sibling by committed adoptive parents who will be able to meet all of her physical, mental and emotional needs and be able to provide her with a stable and loving home environment.

Order

[147] As there is already an order that the child be placed in the extended care of the society, the only order the court needs to make is that there be no access.

[148] There will be an order as follows:

There will be no order of access to the child J.S.P. by the Respondents A.P. and E.S.

Released: September 9, 2019

Signed: Justice Roselyn Zisman