WARNING

The court hearing this matter directs that the following notice should 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 - 02 - 07 COURT FILE No.: Stratford FO-21-706

B E T W E E N :

E.N. Applicant

— AND —

X.N., Huron-Perth Children’s Aid Society Respondents

Before Justice K.S. Neill

Reasons for Judgment released on February 7, 2022

Counsel: Diane Barker/Elizabeth McCarty......... counsel for the Office of the Children’s Lawyer for the children E.N. and X.N. Anne-Marie Tymec..................................................... counsel for the respondent society

Reasons for Judgment

Neill, J.:

[1] On April 26, 2021, the child E.N. born […], 2020, was found in need of protection and placed in the extended care of the Society, with access to his parents a minimum of once per year at the discretion of the Society, with the parents being entitled to receive cards, letters and photos of E.N. twice yearly. E.N. was the access holder and his parents were the access recipients.

[2] E.N. has 4 older siblings, X.N. (now 11 years old); V.N. (now 6 years old); P.N. (now 5 years old) and C.N. (now 2 years old) who were also placed in extended care prior to the order of April 26, 2021 regarding E.N. The children, E.N., V.N., P.N. and C.N. all have the same parents. X.N. has the same father as his siblings, but a different mother. The sibling access with E.N. was not addressed when E.N. was placed in extended care. E.N. was not represented by counsel at the extended care hearing due to his young age.

[3] On October 29, 2019, the children, V.N., P.N. and C.N. were placed in extended society care with access to each other and to their sibling X.N. E.N. was not born when this order was made.

[4] On April 20, 2021, X.N. was placed in extended society care with access with his mother and all of his siblings, E.N., C.N., P.N. and V.N. However, X.N.’s access with E.N. terminated 6 days later when E.N. was placed in extended society care pursuant to s. 105(4) of the Child, Youth and Family Services Act. (“CYFSA”).

[5] The extended care orders for the siblings were made in separate jurisdictions. The extended society care orders for X.N., V.N., P.N. and C.N. were made in Goderich, Ontario. The extended care order for E.N. was made in Stratford, Ontario. Both E.N. and X.N. were access holders and had a right to bring openness applications.

[6] On June 1, 2021 an openness order was made in relation to the 4 older siblings, X.N., V.N., P.N. and C.N in an openness application brought by V.N., P.N. and C.N. All siblings are presently placed together in an adoptive home.

[7] After the Society served Notices of Intent to Place for Adoption, on July 27, 2021 regarding X.N. and E.N., the Office of the Children’s Lawyer (“OCL”) on behalf of X.N. and E.N. commenced separate openness applications. X.N. was seeking openness to his mother and E.N. E.N. was seeking openness to X.N., requesting that in-person visits may include the other siblings, V.N., P.N. and C.N. However, as X.N.’s access order to E.N. terminated when E.N. was placed in extended society care pursuant to s. 105(4) of the CYFSA, the court was concerned that there was no jurisdiction to seek openness between X.N. and E.N. pursuant to s. 196 as there was no longer an access order in effect between them. Therefore, on October 29, 2021, the Society brought an openness application pursuant to s. 194 of the CYFSA seeking openness between E.N. and all of his older siblings. This openness order between the siblings on the basis of the Society’s application was made on consent on January 17, 2022.

[8] Given that the inter-sibling openness order was made on January 17, 2022, the OCL was willing to withdraw their claims for openness brought between E.N. and X.N. However, the OCL sought a ruling that E.N. and X.N. did have a right to seek openness to each other arguing that once a child is a holder of access, the legislation does not limit to whom a child can seek openness pursuant to s.196. The OCL argues that this interpretation is:

(a) consistent with the plain language of the reading of the CYFSA. (b) consistent with a purposeful approach to the CYFSA; and (c) consistent with Canada’s obligations under the United Nations Convention of the Rights of the Child ( “CRC”).

This is the issue for determination presently before the court.

Plain Language Reading of s. 196:

[9] If there is an access order in effect, the triggering event for commencing an openness application pursuant to s. 196 (openness when there is an access order in place) is that the Society must give notice to the persons who have been given a right of access (“access holder”) and to whom access has been granted. (“access recipient”) [1] This includes all Part V access orders, including orders made in siblings’ proceedings that relate to the child being placed, not just access orders included in the extended care order of the child being placed for adoption.

[10] Thirty days after the notice is received, an access holder has a right to bring an application for openness. If the access holder is a child and wants to bring an openness application, s. 196(2) of the CYFSA provides as follows:

Section 196(2): A person making an application for an openness order under this section shall give notice of the application to,

(a) The society having care and custody of the child; (b) If someone other that the child is bringing the application, the child; and (c) If the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made.

[11] The CYFSA does not restrict the child from only bringing an openness application for those listed in an access order and who have been served with a Notice of Intention to Place.

[12] This is a logical interpretation as the child may want openness with someone who is not listed in an access order for several reasons, including:

(i) Relationships for a child can change and develop over the course of a child’s life and may look very different after the extended care order is made. (ii) There may not be evidence at the time of the extended care hearing that a relationship for a child with another person is in their best interests, or whether that relationship is beneficial and meaningful to the child to meet the test for access pursuant to s. 105(5) and (6). However, there may be that evidence at the time that the child is placed for adoption. (iii) Section 105(9) of the CYFSA specifically permits a society to allow contact or communication to a child placed in extended society care if it in the child’s best interests even if there is no access order in effect, and continue existing relationships or even create new relationships. (iii) The test for openness pursuant to s. 196 does not reference any relationships with the child to a person who has an access order but requires an examination of the child’s current relationships. The test pursuant to s. 196 for openness is:

s. 196(7): The court may make an openness order under this section in respect of a child if it is satisfied that,

(a) the openness order is in the best interests of the child; (b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and (c) the child has consented to the order, if they are 12 or older.

[13] It is noteworthy that in s.197, the section that allows a First Nation, Inuk or Metis (“FNIM”) child to seek openness to their FNIM communities, the CYFSA does limit the persons who the child can seek openness with. There does not need to be an access order in effect for a Notice of Intention to Place to be served regarding a FNIM child. However, s. 197 indicates that openness applications can only be brought by the Society or those who have received the Notice of Intention to Place. [2] Section 196 does not have this restriction and permits a child to bring an openness application to anyone who they want to communicate or have a relationship with once they are placed for adoption.

[14] In E.N.’s case, when the Notice of Intention to Place was served, there was an access order in effect, being the access order between E.N. and his parents. Although the access order between X.N. and E.N. had been terminated when E.N. was placed in extended society care, the access order to his parents was not. E.N. was still a holder of access and this did not prohibit him from bringing an openness application for openness to X.N. or any of his siblings.

[15] In interpreting legislation, where the words are “precise and unequivocal”, their ordinary meaning will usually play a significant role to assist to interpret the Act. [3] I agree with the OCL that the ordinary meaning of s. 196 is plain and clear. A child who is a holder of access may bring an openness application to any “person” who will be permitted to communicate with or have a relationship with the child, who the child believes will continue a relationship with the child that is in the child’s best interests, and is beneficial and meaningful to the child. It is not restricted to persons who have orders to access to the child under Part V of the Act.

Purposeful Approach:

[16] This interpretation is consistent with a purposeful approach to the legislation as it ensures that children who are being adopted have the right to seek openness to individuals with whom they have a significant emotional tie. Section 179(1) of the CYFSA defines an openness order as:

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

(a) a birth parent, birth sibling or birth relative of the child, (b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child’s extended family or community, or (c) in the case of a First Nations, Inuk or Metis child, (i) a person described in clause (a) or (b), or (ii) a member of the child’s bands and First Nations, Inuit or Metis communities who may not have a significant relationship or emotional tie with the child in the past but will help the child to develop or maintain a connection with the child’s First Nations, Inuit or Metis cultures, heritages and traditions and to preserve the child’s cultural identity and connection to community

[17] Section 185(2) of the CYFSA mandates the Society to consider the benefits of an openness order or openness agreement in respect of a child when the Society begins planning for the adoption of a child in extended society care.

[18] Section 64 of the Legislation Act, 2006 provides that an Act should be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objectives. [4] The Ontario Court of Appeal has also endorsed that the CYFSA is remedial legislation enacted for the protection of society’s most vulnerable children. It must be liberally construed to the benefit of the child. [5]

[19] It must always be kept in mind that the paramount purpose of the CYFSA is to “promote the best interests, protection and well-being of children” [6] Since openness was first introduced into the Child and Family Services Act (“CFSA”) in 2006, and now in the CYFSA, the openness provisions have expanded as follows:

• In 2006, only the Society was permitted to seek an openness order, and only if it was on consent. [7]
• In 2011, the CFSA permitted children in extended care to be placed for adoption even if there was an access order, with the access holder now also having a right to bring an openness application. [8]
• In 2018, the definition of access to a child in extended care under the CYFSA was expanded, which was a significant shift as there is no longer a presumption against access and no onus on the person seeking access. [9]
• In 2018, new openness provisions were introduced to allow FNIM children being placed for adoption to seek openness between the child and their FNIM community, even if there was no access order in effect. [10]
• Children are now given expanded participatory rights in openness proceedings under Part VIII. They must be given notice of all applications for openness brought by other parties, and adopted children are now given a right to bring an application to vary or terminate an openness order, with leave, after the finalization of an adoption order. [11]
• In 2018, section 220 of the CYFSA was introduced to provide that openness orders continue in force and effect unless terminated or varied if there was an adoption breakdown.

[20] All of these amendments reinforce that the purpose of openness under the CYFSA is to provide children with opportunities to maintain post adoption relationships with persons with whom they have a beneficial and meaningful and/or culturally significant relationships and where it is in the child’s best interests. A legislative provision must be assessed in all its textures – language, purpose and effect. [12] A broad and liberal interpretation of s. 196 to permit a child being placed for adoption to apply for openness to whomever he or she has a beneficial and meaningful relationship to ensure that the relationship is preserved achieves this purpose.

[21] A relationship with a child that was considered as in the child’s best interests and beneficial and meaningful to them at the time the access order was made in the Part V proceedings, may no longer be in their best interests when the child is placed for adoption. Conversely, children may develop significant relationships with others after they are placed in extended society care that were not contemplated at the time of the extended care order, including with siblings born after the extended care order is made. A broad interpretation of s. 196 to permit a child to seek openness to a person not specifically named in an access order would allow for a fulsome consideration of current relationships for children that may in a child’s best interests.

[22] It would frustrate the goals of the CYFSA to deny children the opportunity to maintain these relationships post adoption with a restrictive interpretation of s. 196. As in the case of E.N., at times children do not have legal representation during the Part V proceedings to advocate for access to those who may have a significant relationship with the child.

[23] The new provisions of the CYFSA expanded the right to bring openness applications, which were previously limited only to the Society, to include children who were access holders. Although the Society in this case brought an openness application pursuant to s. 194 to ensure that E.N.’s relationships with his siblings were preserved post adoption, this may not occur in every case.

Canada’s obligations under the United Nations Convention of the Rights of the Child (“CRC”).

[24] A broad interpretation of s. 196 is also consistent with Canada’s obligations under the CRC, to which Canada is a signatory.

[25] The preamble of the CYFSA indicates that:

“The Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child”.

[26] Articles 3, 8 and 12 of the CRC include the requirements to keep the children’s best interests at the forefront, the rights of children to preserve their identity and family relations without unlawful interference, and the rights of children to have a say in decisions that impact them. [13]

[27] In the context of what openness a child will have post-adoption, the CYFSA emphasizes that a child’s views and wishes, given due weight in accordance with their age and maturity, is at the forefront of the analysis of what is in the best interest of the child. [14] Given that a child’s views and wishes are a mandatory consideration in the best interest test, the only logical interpretation of s. 196 is that if the child is the holder of access and has the right to bring an openness application, their views and wishes of who they have openness with must be considered. This interpretation also gives the child the ability to identify and protect relationships that are important to them. All of this is consistent with the principles in the CRC.

[28] If s. 196 of the CYFSA is not given this broad interpretation, after being served with a Notice of Intent to Place, children being placed for adoption may have to bring applications for access to persons who are important to them to maintain their relationships, which is clearly not what was intended by the CYFSA.

[29] A plain reading of the CYFSA, a purposeful approach, and the principles set out in the CRC that must be considered, all support a broad interpretation of s. 196 as set out above that if a child placed in extended society care is a holder of access, the CYFSA does not limit to whom a child can seek openness. This does not apply, however, if a child is in extended society care and there is no access order at all in place, or if the child is the recipient of access.

Order:

1. The Office of the Children’s Lawyer is permitted to withdraw their claim for Openness between the child, E. and X., acknowledging that there is jurisdiction for the children, E. and X. to seek openness to each other as holders of access.

Released: February 7, 2022 Signed: Justice K.S. Neill

Footnotes

[1] Section 195(2), CYFSA; Rule 34(17)(e) of the Family Law Rules [2] s.197(5) (6), CYFSA [3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65 [4] Legislation Act, 2006, S.O. 2006, c. 21 Sched. F. [5] Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. [6] S. 1(1), CYFSA. [7] Section 145.1 and 153.6, Child and Family Services Act, R.S.O. 1990, c.C.11 [8] Section 145.1.1 and s. 145.1.2, Child and Family Services Act, R.S.O. 1990, c.C.11 [9] Section 105(5) and (6); Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. [10] Section 197, CYFSA [11] Section 207, CYFSA [12] Telus Communications Inc. v. Wellman, 2019 SCC 19, [2019] S.C.J. No. 19 [13] Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Article 3, 8 and 12. [14] Section 179(2), CYFSA.