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.
(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.
(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.
CITATION: C.H. v. Huron-Perth Children’s Aid Society, 2021 ONCJ 701
DATE: November 8, 2021
Court File: 661/21
C.H. and Z.H.
-and-
Huron-Perth CAS, A.C. and J.H.
ENDORSEMENT
November 8, 2021
S. Gordon: OCL for C.H. and Z.H.
A. Tymec: counsel for the Society
F. Roy: counsel for mother – present
J. Splane: counsel for the father – present
Neill, J.
[1] The applicant children, C.H. and Z.H. were placed in extended care on December 30, 2019 on consent. The children, C.H. and Z.H. were ordered to have a right of access to their 2 older siblings and their parents. The order provided that the children, C.H. and Z.H. were access holders and the parents were access recipients.
[2] Prior to placing the children C.H. and Z.H. for adoption, the Society served the required Notices of Intention to Place for Adoption. In response to these Notices, the children, C.H. and Z.H. brought an application for openness on March 19, 2021 seeking openness between their siblings and their parents. In the application, the children, C.H. and Z.H. were seeking openness to their parents a minimum of 3 times per year, which what was ordered for access in December, 2019. The parents served an Answer seeking to increasing their contact with the children to a minimum of in-person contact for two hours twice a month.
[3] On September 22, 2021, a consent order was made for openness between all four siblings. The only outstanding issue was whether there should be openness between C.H. and Z.H. and their parents. This issue proceeded to a settlement conference and was not resolved.
[4] The Office of the Children’s Lawyer, on behalf of C.H. and Z.H. now wishes to withdraw their Application for Openness. Pursuant to Rule 12(2) of the Family Law Rules, as C.H. and Z.H. are child parties they must obtain permission of the court to do so. Ms. Gordon, the OCL served a motion with affidavit material in support of her request for withdrawal, and the parents have served a responding affidavit.
[5] Applying the caselaw regarding the Society’s requests to withdraw a Protection Application, the OCL requested that the court apply the following factors when determining whether to permit a party to withdraw an openness application:
What are the reasons for the requested withdrawal?
Who are the access holders and access recipients?
How would the withdrawal impact fairness to the parties?
What parties have consented to the withdrawal?
Do the children have any views and wishes with respect to the withdrawal?
I believe these are appropriate factors for the court to consider.
[6] Considering the above-noted factors, I find the following:
- Due to the father’s aggressive behaviour, an openness order for in-person openness is not in the children’s best interests and could jeopardize their adoptive placement.
• The father has been aggressive with society workers telling them to “fuck off”, and accusing them of being liars. The father has threatened to “end” a worker, refused to leave the agency and threatened to blow it up. Police have had to be called due to the father’s behaviours.
• During access visits, workers have to protect themselves from the father for safety reasons. Two workers must be present for visits and wear safety medallions. The father refers to the workers as “mask Nazis” and “kidnappers” in the presence of the children.
• In a recent visits with the two older siblings, a security guard had to be present. When the father saw the security guard he was verbally aggressive and began filming the security guard.
• In July, 2021, during a visit with the children, the father told the workers to “shut up” and called them names.
• The father refuses to abide by COVID protocols or wear a mask during visits.
• The father has spit on glass in the reception area of the Society at one of the senior managers. The father has been recently charged with assaulting the Executive Director of the Society and is now subject to criminal conditions not to attend at the agency.
• In his responding affidavit, the father does not dispute his actions but blames his conduct on the Society’s refusal to work with him.
• The adoptive parents are afraid to deal with the father. They now oppose in-person visits between the children and the parents but are willing to provide updates to the parents by way of letters, cards and photo exchanges.
• During the hearing of this argument, the father’s initial submissions consisted of simply showing his middle finger to the court, an act for which he apologized afterwards.
The parents are access recipients and do not have a right to bring an openness application themselves. This should be distinguished from the situation where the parents are holders and could have brought an application but only responded to the application already before the court.
With respect to the withdrawal impacting the fairness to the parties, at this point the Society and the adoptive parents are willing to negotiate an openness agreement with the parents. If the father can accept that the adoptive parents will be the children’s parents and be supportive of this placement, and control his anger around the children and towards their caregivers, the parents, who are still together, may be able to continue their relationship with the children through an agreement.
The Society, the OCL and the adoptive parents are all supporting the withdrawal of the application. Although the parents are opposing the withdrawal, they do not have a right themselves to bring an openness application.
In this case, as the children are 3 and 4 years old, they have not articulated specific views and preferences.
[7] On the basis of the above and considering the overriding paramount purpose of the CYFSA to promote the best interests, protection and well-being of these children, the court has no concerns with the request of the OCL to withdraw the openness application.
[8] This is definitely not a case where costs should be awarded.
[9] Therefore, there will be the following order:
- The openness application dated March 19, 2021 is withdrawn, without costs.