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 subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 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 subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 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 8, 2020

Court File No.: Brantford C 606/16

Between:

Brant Family and Children's Services (o/a The Children's Aid Society of Brant)

Applicant

— And —

S.J.P.

Respondent

Before: Justice A.D. Hilliard

Heard on: August 24, 25, 26, 2020

Reasons for Judgment released: September 8, 2020

Counsel

Birkin Culp — counsel for the applicant society

Faizal Roy — counsel for the respondent

Linda Henry — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

Hilliard J.:

Background

[1] The two subject children of this proceeding are L.P., born […], 2013, and R.P., born […], 2017.

[2] On February 9, 2017, by order of Justice G.B. Edward, the child, L.P. was placed in the care of both of his parents, C.P. and S.P., under terms of supervision for a period of six (6) months. The child protection application that resulted in that final order was commenced prior to the birth of R.P.

[3] On May 9, 2017, both children were removed from the care of the parents and taken to a place of safety. They have remained in the care of the Society ever since.

[4] On January 10, 2019, the Society's motion for summary judgment requesting the children be placed in the extended care of the Society with no access to the Respondent parents was granted by Justice K.A. Baker. Pursuant to the usual protocol, the Respondent parents were granted a goodbye visit with the children, which occurred on January 23, 2019.

[5] The Respondent father appealed Justice Baker's decision to the Superior Court of Justice. The Respondent mother did not file an appeal or participate in the Respondent father's appeal.

[6] The appeal was heard by Justice R.J. Nightingale on October 10 and October 17, 2019. The Respondent father was self-represented throughout the appeal process.

[7] Justice Nightingale's decision on the appeal was released on November 13, 2019. The appeal was allowed in part. The order for the children to be placed in the extended care of the Society was upheld but the matter was remitted back to the Ontario Court of Justice for a trial on an expedited basis regarding the issue of the Respondent father's access to the children.

[8] The Respondent father's access was terminated by virtue of Justice Baker's January 10, 2019 order and no motion was brought to reinstate that access after the appeal was granted in part. The Respondent father has therefore had no access or contact with the children for approximately 20 months.

[9] At the initial trial management conference before me, the Respondent father requested the appointment of the Office of the Children's Lawyer to represent the two children. That order was made with the consent of counsel for the Society. It was determined, given the number of witnesses anticipated to be called, combined with the father indicating he would be representing himself, that the trial would take approximately 5 days to complete. The trial was then scheduled to proceed in June 2020.

[10] Due to the closure of the courts as a result of the COVID-19 global pandemic, the trial did not proceed in June as scheduled. The Respondent father retained counsel in the intervening period between the onset of the pandemic and the rescheduling of the trial in July. The matter was then scheduled for trial before me on a specially convened trial sitting for the week commencing August 24, 2020.

[11] The trial commenced as scheduled. At the outset of the proceedings the Society's position was that the Respondent father should be granted no access to the subject children. The OCL was advocating that the child, L.P., should be the holder of access, with a minimum of three (3) face-to-face visits a year, and with cards and letters allowed to be sent by the Respondent father, but it took no position with respect to the child, R.P., as her views and preferences could not be ascertained. The Respondent father was requesting access with both children. It was agreed that the OCL would present its case first in order to accommodate the clinical investigator's schedule.

[12] Despite the limited scope of this trial, numerous procedural issues arose over the course of the three days it took to complete the matter. In the interests of transparency and fairness, all these issues should be canvassed prior to me dealing with the substantive issue on this trial – access to the children by the Respondent father.

Mid-trial Withdrawal of Respondent Father

[13] After the morning recess of the first day of the trial, counsel for the Respondent father advised the court that counsel was given instructions by his client to withdraw his request for access and consent to the Society's request that there be a no access order.

[14] Given the OCL's position stated at the outset of the proceedings, an adjournment was requested by OCL counsel to consider how the withdrawal of the Respondent father would impact the OCL's position. I indicated that I was of the view that the Respondent father should take some time to speak further with his lawyer and decide whether he really wished to withdraw his claim for access. The matter was stood down for those purposes.

[15] When the court reconvened after the extended luncheon recess, counsel for the Respondent father advised that his client had changed his position and was withdrawing his request to withdraw from the proceedings. Consequently, the trial continued.

[16] On the second day of trial, upon resuming court after the morning recess, I was again advised by the Respondent father's counsel that he had received instructions from his client to withdraw his claim for access and terminate his participation in the proceedings. Upon hearing the submissions of counsel, I invited the Respondent father to take the stand, be sworn, and testify under oath about his intentions regarding his ongoing participation in the trial.

[17] The Respondent father was questioned by his lawyer, counsel for the OCL, and me. No questions were asked of the Respondent father by counsel for the Society, nor did counsel make any submissions regarding the Court accepting the Respondent father's withdrawal.

[18] Upon providing brief oral reasons, I accepted the withdrawal of the Respondent father and issued an endorsement accordingly. The trial was then adjourned for the balance of the morning to give counsel an opportunity to consider and discuss how the remainder of the trial was going to proceed.

[19] The trial resumed at 2:00 p.m. that day. The Respondent father and his counsel were not in attendance for the resumption or remainder of the trial.

Mistrial Motion

[20] Upon the trial resuming after the withdrawal of the Respondent father, counsel for the Society brought an oral motion that a mistrial be declared. Although the oral motion was ultimately withdrawn, the issues raised and discussed during submissions on the mistrial motion cannot go without comment as it has a direct bearing on other issues raised during closing submissions.

[21] The basis of the request that a mistrial be declared was that, prior to the Respondent father's withdrawal, I had received a 387 page unsworn affidavit from counsel. The purpose for giving me the unsworn affidavit was to allow me to follow along during cross-examination when Society witnesses were being asked questions about some of the contents of the affidavit. It was anticipated that the affidavit would be sworn to by the Respondent father at the commencement of the presentation of his case. The swearing of the affidavit never occurred because the Respondent father withdrew prior to the end of the Society's evidence.

[22] Mr. Culp submitted that my having physically received an unsworn affidavit prepared by the Respondent's counsel created a procedural irregularity, now that the Respondent had formally withdrawn from the proceedings. The issue was that I had seen and referred to a document that was not entered formally into evidence, and was an unsworn affidavit, untested by cross-examination. After some discussion between myself and counsel, it was conceded that the unsworn affidavit was not evidence despite its physical presence on the dais.

[23] As the unsworn affidavit had been referred to during cross-examination of Society witnesses, I had the three volume 387 page unsworn affidavit marked as Exhibit "A" on the proceedings. It was confirmed that a lettered exhibit is not evidence to which I could refer, or upon which I could rely, for the purposes of my decision regarding the issue of access. On that basis, the mistrial motion was withdrawn.

Preliminary Issues Raised in Closing Submissions

[24] Counsel for the Society handed up a written closing statement, and also made oral submissions in closing. The Society raised eight (8) preliminary issues to be addressed by the court. The last two of the eight issues raised were, in my view, legal arguments regarding the test to be applied by the Court when determining whether an access order should be made. I will address these issues in the analysis section with respect to the issue of access.

[25] I will address the first 6 issues in the order they were presented and numbered by counsel in his written closing statement.

#1 – S.P. Has Withdrawn from the Case – What Does That Mean?

[26] The Society's position is that the Court cannot order access for the Respondent father with the children as he now has no claim for access before the court. The Society further submitted that the Respondent father indicated, during his brief testimony regarding his desire to withdraw his claim, that he understood that no access could be ordered once he withdrew.

[27] The position of the Society is not an accurate depiction of what the Respondent father said during his testimony, nor even of the questions asked by either counsel or me. It was put to the Respondent father in cross-examination by the children's lawyer that he understood that his withdrawal meant that he would have no right to request to see either of his children again, and he answered yes. Counsel then asked if he understood that he would have no right to communicate with either child now or in the future, and again he indicated he understood. I advised the Respondent father that there was a good possibility that he may never see his son again if he withdrew and when asked if he might change his mind given some time. He responded, "no, it needs to be done."

[28] The Respondent father was advised by me that his withdrawal would mean that he would not be able to have any further input into my decision and that my decision would be based on what I had heard while he was present, as well as anything I may hear after he stops participating. Again, he indicated that he understood.

[29] The answer to the question of what it means that the Respondent father withdrew from participating in the trial and withdrew his claim for access is that from the point of his withdrawal he cannot provide evidence or submissions for my consideration. It means nothing more.

#2 – None of S.P.'s Evidence is Before the Court

[30] As I indicated during argument on the mistrial motion, the unsworn affidavit of the Respondent father is not evidence that I can consider on this trial. However, I do not agree with the submission that there is no evidence from the Respondent father that I can consider.

[31] The Respondent father testified at my request in relation to his stated desire to withdraw his request for access. He took the witness stand and swore an oath to tell the truth. In response to questions asked of him, the Respondent father gave the following evidence:

i. He was withdrawing voluntarily, no one having threatened him or made him any promises;

ii. He understood that his withdrawal would result in him having no right to request to see either of the children;

iii. He understood that his withdrawal may result in him having no right to communicate with the children, specifically the child, L.P., now or in the future, stating "it's what he needs";

iv. He understood that he would not be able to give any further evidence or make any further submissions to the court once his withdrawal was accepted;

v. When asked if given some time he might change his mind, he responded, "no it needs to be done";

vi. He acknowledged that once his withdrawal was accepted he would not likely be allowed to return if he changed his mind; and

vii. He acknowledged that my decision would be based on evidence heard both before and after his withdrawal.

[32] That evidence of the Respondent father is before the court and is evidence that I can take into consideration in my deliberations. I take the Respondent father's evidence to be that after hearing some of the evidence from the Society, he concluded that having access with his children, particularly L.P., is not in the children's best interests.

[33] It is also important to note that it was once again reiterated by the Ontario Court of Appeal in their recent decision in Children's Aid Society of Toronto v. J.G. that it is no longer the case that a parent who puts forward no evidence will not be granted access. The determination as to what access, if any, is in the children's best interests is not premised on a parent putting forward evidence to demonstrate why they should be granted access.

#3 – It is Fair to Characterize Mr. P. as "Not Wanting Access"

[34] I find that the Society is incorrect in its assertion that the Respondent father can only be granted access through a request for access. Section 104(2) of the Child Youth and Family Services Act (CYSFA) clearly sets out who can bring an application for access. It is not only parents who can bring an application but also a child. It is entirely inconsistent with a purposive interpretation of the CYSFA to find that a parent's withdrawal from the proceedings automatically results in a claim by the child for access being terminated.

[35] I do not agree with the proposition put forth by the Society that the Respondent father's withdrawal can be equated with a statement from him that he does not want any access with the children. The evidence of the Respondent father directly contradicts the Society's position. At no point did he say, "I no longer want access to my children." What he did testify to was his belief that it is not in his children's best interests to have access with him. This is not a semantic distinction. It is not inconsistent for a parent to want very much to see their children while at the same time recognizing that access would not be good for their children. I find that such is the case in this matter. The Respondent father clearly indicated his love for his children during his participation in these proceedings. I find that it is out of that love that he was able to make the decision to put what he believed would be in their best interests above his own desire to see them and have contact with them again.

[36] It is not the case that a parent must not be permitted to withdraw from proceedings if they still hold a genuine desire to see their children. Participation in family court proceedings is not mandatory. The Respondent father did not specifically state while giving his evidence that he still wishes for me to make an order for access. However, my decision as to whether access is in the best interests of the children is not contingent upon the participation of the Respondent father in these proceedings.

#4 – R.P. Does Have a View and Preference Contrary to the OCL Position

[37] Evidence of absence does not equate to a finding that there is evidence upon which a finding can be made that R.P. does not wish to see the Respondent father, as the Society urges me to accept. It would be a logical fallacy for me to make a positive finding of fact that R.P. does not wish to see her birth father by virtue of the evidence presented, which is that she has no memory of him.

[38] The position taken by the OCL that R.P. did not articulate a view and preference regarding access with the Respondent father is appropriate and supported by the evidence. John Butt, an experienced clinical investigator, provided evidence that during his two meetings with R.P. it was clear that R.P. has no memory of her biological father and that she was therefore unable to express any views about whether or not she would like to see him. Mr. Butt further expressed that it was not surprising that at 3 ½ years of age, R.P., having been in foster care since she was an infant, and having not seen the Respondent father in approximately 20 months, was only able to identify the foster parents as her "Mom" and "Dad". I find that there was nothing subjective or inaccurate in the position taken by the OCL that a child of R.P.'s age and development was unable to provide views and preferences.

[39] I find that there is no evidence upon which I could make a finding that the child, R.P. has expressed any view or preference regarding access with the Respondent father.

#5 – L.P. (and R.P.) Cannot be a "Holder of Access"

[40] There is no doubt that I am bound by decisions of the Superior Court of Justice, particularly in this case, where the matter before me comes by way of an order arising from an appeal. I cannot exceed my jurisdiction and make orders on matters outside the scope of the issues sent back by the appellate court. The issue then becomes, what possible orders can be made after a trial "to determine the question of denial of access to or of access including the nature and extent of that access of the appellant father to the children pursuant to the CYSFA."

[41] I agree that I am bound to only decide the issue of access in relation to the Respondent father. I would exceed my jurisdiction on this trial were I to make orders in relation to sibling access or access to the Respondent mother. However, the Society's position that Justice Nightingale's order restricts me to determining only the issue of the Respondent father as an access holder is an incorrect interpretation of the appeal disposition.

[42] Any determination regarding access under the CYSFA engages sections 104 and 105 of that Act. Had Justice Nightingale directed that the matter be remitted back to determine whether the Respondent father could be an access holder under s. 105(7) the Society's submission would be correct. However, that was not the order made. Rather the issue of access was sent back for determination pursuant to the CYSFA.

[43] Access holders and access recipients, pursuant to s. 105(7), are to be specified only where a court makes or varies an access order under section 104 with respect to a child who is in extended society care. The Society's submission on this issue puts the proverbial cart before the horse. The court may make, vary or terminate an order respecting a person's access to a child or children under s. 104. Only in the event that an access order is made does section s. 105(7) engage.

[44] To interpret Justice Nightingale's order as foreclosing the possibility of this court making an access order that designates the children as access holders is inconsistent with the provisions of s. 104 and 105 of the CYSFA and is, in my view, incorrect.

#6 – Justice Penny Appeal Decision Did Not Order Access

[45] It was conceded by OCL counsel in submissions that the decision of Justice Penny in Office of the Children's Lawyer v. Catholic Children's Aid Society of Toronto did not order access on that appeal decision. OCL counsel further submitted that the case was not being provided to the court to demonstrate a change in the best interests test.

[46] Justice Penny confirmed the participatory rights of children under the CYSFA, particularly where an order has been made appointing counsel for the children. It is further confirmation that Justice Nightingale's appeal order could not possibly be interpreted as eliminating a right of the children to be access holders.

Analysis

Kawartha, Peel, J.G. – The New Approach

[47] The Ontario Court of Appeal in the recent J.G. case affirmed their decisions in Kawartha-Haliburton Children's Aid Society v. M.W. and L.M. v. Peel Children's Aid Society in which the new test for access to children placed in the extended care of the Society was set out.

[48] The release of the Kawartha decision by the Court of Appeal was after Justice Baker's decision on the motion for summary judgment in this matter and in large part informed Justice Nightingale's analysis on the appeal. Kawartha made it clear that the burden no longer rests on the party seeking access to demonstrate that it is meaningful and beneficial. Kawartha represented a significant shift, as the Court held that under the CYSFA there is no longer a presumption against access for children who have been ordered into the extended care of the Society. The approach set out in Kawartha was affirmed in the Peel decision.

[49] Even after the Kawartha and Peel decisions, there was some uncertainty about whether the new test for access under the CYSFA changed how trial courts were to assess whether a beneficial and meaningful relationship existed between the parent and child. In J.G., the Court of Appeal put an end to that debate:

The new access test is no longer a "beneficial and meaningful" test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child's best interests it should consider all relevant factors, including – as I discuss below – whether past, present, or future. The new access test now permits a court to conduct a more holistic and comprehensive analysis of what is best for a child. (emphasis in original)

[50] Justice Benotto, writing for the Court, also provided some helpful guidance to trial courts on the issue of onus:

I do not find it helpful to import the concept of onus when the court is required to consider and balance the various factors that affect the life of a child in protection. The court is not called upon to determine past events and to make findings. Instead the court must consider and weigh a number of factors, past, present and future.

A child's best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.

[51] Given this direction from the Court of Appeal, it is not appropriate for me to place the onus on the Society to demonstrate why the Respondent father should not have access with the children, nor on the Respondent father to demonstrate why he should. Rather, the task before me is to determine whether it is in the children's best interests to have access with the Respondent father, and if so, what form and frequency of access should be ordered.

Best Interests Test Applied

Views and Wishes

[52] I must consider the stated view and wish of L.P. that he wants to be able to see his father and receive communication from him. I accept the evidence of Mr. Butt, the clinical investigator, that L.P.'s views were clearly articulated and consistent through all three meetings Mr. Butt had with L.P.

[53] However, I also take into consideration that L.P. is 7 years old. The evidence of his current foster mother is that L.P. does have memories of his parents. From what was recounted by the foster mother, some memories are not positive. The foster mother recalled L.P. telling her of a time when he had to hide because his parents were fighting, and the police came and took him away. Despite that, L.P. appears to have some good memories of the Respondent father, telling Mr. Butt in an interview that he would be happy to have visits with his biological father "because he plays with me and buys me toys."

[54] L.P.'s stated view that he wishes to have access with his father is but one of the factors to be taken into consideration in determining whether access is in L.P.'s best interests. He is also only just 7 years old. The weight to be given to his views and wishes is somewhat less than if he were a teenager, or even a pre-teen in my view.

[55] As indicated above, I accept that R.P. has no stated view or preference that I must take into consideration. I do not consider the evidence of Mr. Butt, that R.P. indicated that the only people she could identify as her parents were the current foster parents, is capable of supporting an inference that R.P. does not wish to see the Respondent father. I could no more conclude that R.P., at age 3, does not wish to see or have contact with anyone unknown to her. There is simply no evidentiary basis for me to make such a conclusion and I decline to do so.

Physical, Mental, and Emotional Needs and Development

[56] In considering whether access would be in these children's best interests, I must consider their physical, mental, and emotional needs and level of development. This is of particular importance in considering access for L.P.

[57] L.P. was diagnosed in April 2018 with neuro developmental disorder associated with specific exposure (complex trauma) and post traumatic disorder features. Despite being almost 5 years old at the time, L.P. was assessed as having the self-regulating ability equivalent to a 2 ½ year old.

[58] L.P. participated in play therapy to address his grief and loss after the goodbye visit with his biological parents. During the ten play therapy sessions, lasting from February to August 2019, the therapist was able to work with L.P. on issues of emotional regulation, transitions planning and transitioning anger, and grief and loss. The evidence is clear and uncontradicted that L.P.'s behaviours and ability to cope increased significantly after the completion of these ten sessions.

[59] Given the trauma experienced by L.P. and the counselling and therapy that he has required to stabilize his emotions and behaviours, I do have serious concerns about the effect that a reintroduction of his biological father would cause. I note that one of the memories that L.P. has of his biological parents is of them fighting and him being taken away by the police as a result. I find that based on the evidence I heard, it is reasonable for me to conclude that there is a good possibility that the emotional impact on L.P. of an access order would be negative.

[60] R.P. has now been completely discharged from all medical interventions. Although she required significant medical and developmental services upon first being brought into care, she is now presenting as a healthy, happy, interactive 3 ½ year old, with no noted emotional, physical, or developmental needs.

[61] R.P. has no memory of the Respondent father. It is reasonable to conclude that a reintroduction at this stage of her emotional development could be confusing and possibly traumatic. It would be natural and understandable for the Respondent father to want to refer to himself as "Dad" in any contact or communication he might be allowed to have with R.P. However, the evidence is clear that the only "Dad" R.P. knows is her current foster father, the prospective adoptive placement. I find that there is a good possibility that an access order would have a negative impact on R.P.

Positive Relationship with Parents and Continuity of Care

[62] The children are living in the prospective adoptive home. The foster mother testified that regardless of their legal status, she views L.P. and R.P. as her children, and her home as their forever home. When directly asked by me whether an order for access would make her change her mind about adopting the children, the foster mother replied that although it would make life more difficult, nothing would make her give up these children. I therefore accept that an access order would not disrupt the current placement.

[63] However, it is relevant, in my view, to consider whether the children, L.P. in particular, would experience disruption in their lives if I were to order access. There is some evidence to suggest that access with the Respondent father would negatively impact L.P.'s ability to form a positive bond and lasting attachment with the prospective adoptive parents.

[64] L.P. was described as anxious and angry upon first coming into care. He exhibited aggressive and destructive behaviours in his first foster home that only subsided over time. When he first began school in 2017, L.P. exhibited physical and verbally aggressive behaviour towards both his teacher and educational assistant. A safety plan had to be created in consultation with the school and L.P.'s foster mother at the time to address these behaviours. All of these behaviours stopped shortly after access was terminated.

[65] The children went to reside in the prospective adoptive home in August 2019 six months after the goodbye visit with their biological parents. L.P. had engaged in nine out of ten play therapy sessions focusing on emotional regulation and grief and loss prior to his move to the prospective adoptive home, the tenth occurring after the move. L.P. then engaged in a further fifteen sessions with a different play therapist that involved his prospective adoptive parents. The second set of sessions focussed on attachment and developmental trauma, and they provided the prospective adoptive parents tools to manage L.P.'s behaviours.

[66] L.P. and R.P have now stabilized in their new home and have formed positive bonds with the prospective adoptive parents. I find that there is a significant possibility that a renewal of contact or communication with the Respondent father could jeopardize the stability and continuity that has been achieved for these children.

Beneficial and Meaningful Relationship

[67] R.P. was only just 2 years old when the visits were terminated. The evidence is clear that R.P. has no memory of the Respondent father. Although in the broadest dictionary definition of the word 'relationship' according to Merriam-Webster, the state of being related or interrelated, R.P. has a relationship with the Respondent father to the extent that he is his birth father, there is nothing else that binds or connects them together. To use another definition of 'relationship', that being a state of affairs that exists between those having relations or dealings with one another. For the last twenty months R.P. has not had any dealings with the Respondent father. Consequently, I cannot find any evidence that a beneficial and meaningful relationship exists between R.P. and the Respondent father.

[68] Despite not having any contact or communication with his biological father for the last twenty months, L.P. clearly knows who he is and has memories of him, some good, some bad. The question then becomes, in the life of a child aged 7, can a meaningful relationship be said to still exist with a person he has not seen for 20 months? On the evidence before me, I have concluded that the answer is no.

[69] At best, the Respondent father is remembered by L.P. as a person he once played games with and who brought him toys and presents. At worst, the Respondent father is associated with a traumatic event, a time when L.P. was taken out of the care of his parents by the police. There was evidence of L.P. remembering his birth parents fighting and having some memory of his father going to jail for fighting with his birth mother. Knowing and remembering your birth parents does not equate to having a meaningful relationship with them.

[70] For me to find that L.P.'s relationship with his biological father was beneficial, there would have to be some evidence that access with his biological father had a positive impact on L.P. Unfortunately, all of the evidence is to the contrary. L.P.'s aggressive behaviours and emotional dysregulation ceased shortly after access was terminated. That in itself leads me to conclude that L.P. benefited not from an ongoing relationship with the Respondent father but rather from the termination of contact with him.

[71] I also consider here the evidence of the Respondent father himself. When testifying as to his reasons for withdrawing his request for access, the Respondent father stated "it's what he needs". I took from that testimony that the Respondent father himself had concluded that having a relationship with L.P. would not be beneficial. The Respondent father acknowledged that his personal desire to rekindle a relationship with his son, would not be "fair to him". It takes a significant amount of courage and love to be able to set aside one's own needs and desires to do "what needs to be done", in the words of the Respondent father, in L.P.'s best interests.

Cards and Letters

[72] For substantially the same reasons as I have set out above, I cannot find any evidence that making an order allowing the Respondent father to send cards and letters to the children would be in their best interests.

[73] I accept the evidence of the prospective adoptive mother that receiving cards or letters from the Respondent father could be confusing and disruptive for L.P. There is simply no way to know in advance what the contents of the cards or letters would be and therefore impossible to assess the actual impact of whatever may be written by the Respondent father in a card or letter. I find that it is very likely that, whatever the content of the cards or letters, the good work around grief, loss, acceptance, and attachment done with L.P. could be compromised by ongoing communications sent by the Respondent father.

[74] At R.P.'s age, the contents of the cards or letters would very likely have little meaning. She cannot read and therefore the cards or letters would have to be read and explained to her. I also find that were I to order that the Respondent father could send cards and letter to L.P. but not R.P. that may create some confusion and resentment in the future when R.P. is of an age where she is able to understand that for some reason her brother receives cards and letters, but she doesn't.

[75] The prospective adoptive mother gave evidence that she has told L.P. that if at some point in the future, when he is older and more emotionally mature, he wishes to seek out his birth father, she will assist him in doing so. I accept her evidence in this regard and find that, even without an order providing for L.P. to be the holder of access to receive cards and letters from the Respondent father, if he wishes to have contact with the Respondent father in the future, he will have assistance from his adoptive mother in attempting to make contact.

Conclusion

[76] Having taken into consideration all the evidence and balancing and weighing all the factors set out above and the principles enunciated in the CYSFA, I find that it is not in the children's best interests to have access with the Respondent father.

[77] As there have been no requests for costs in this matter none will be ordered.

[78] A final order shall issue as follows:

(1) There shall be no access by the Respondent father to the subject children.

(2) No order as to costs.

Released: September 8, 2020

Signed: Justice A.D. Hilliard