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.

Ontario Court of Justice

DATE: 2025-02-21
COURT FILE Nos.: City of Stratford F023-881, City of Stratford F023-882

BETWEEN:

Z.H.
T.H.
Applicants

-AND-

Huron-Perth Children's Aid Society
A.C.
J.S.-H.
Respondents

Before Justice K.S. Neill

Heard on September 16, 17, 18, 19 and October 21, 2024
Reasons for Judgment released on February 21, 2025

Sara Wisking counsel for the applicants
Barbara Tuer counsel for the respondent society
Brent Balmer counsel for the respondents A.C. and J.S.-H.

Neill J.:

Overview

[1] Before the court are two Applications for Openness dated June 30, 2023 brought by the Office of the Children's Lawyer ("OCL") on behalf of two children, T.H. born […], 2014 and Z.H. born […], 2015. T.H. is 10 years old and Z.H. is 9 years old.

[2] Following a trial, an order was made on May 25, 2020 placing the children in extended care with access to their parents. T.H. and Z.H. have now been placed for adoption in a home with their two younger siblings C.H., who is 7 years old and Z.E.H. who is 6 years old. There is an adoption plan for all of the children to remain together in their present placement. T.H. and Z.H. wish to have ongoing in-person contact with their birth parents. This is consented to by the birth parents but opposed by the Huron-Perth Children's Aid Society ("the Society").

[3] Both Openness Applications proceeded to trial together which was heard over 5 days in September and October, 2024.

[4] It is extremely important to recognize that findings were made on July 10, 2018 that the children are of Metis heritage (with no specific band/community identified) and that the father also identifies as Metis. The focus of this hearing was whether or not ongoing contact with the birth parents is in the children's best interests and beneficial and meaningful to the children given their strong views to maintain this contact, and the importance of having a connection to their Metis heritage.

[5] As the Ontario Court of Appeal confirmed in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the finding that children are First Nations ushers in "a series of special considerations including the provision of services and decisions that recognize the importance of the child's culture, heritage, and connection to community", and that the "special considerations that apply to indigenous children must be part of every decision involving indigenous children", including decisions on openness.

Background

[6] The birth parents of the children are A.C. ("the birth mother") and J.H. ("the birth father"). They have 4 children: T.H. and Z.H., who are the subject of these proceedings, and their younger siblings, C.H. and Z.E.H. The three older children, T.H., Z.H. and C.H. were brought to a place of safety in December, 2017 and the child, Z.E.H. was brought to a place of safety at birth in April, 2018. The children have remained in the care of the Society since that time.

[7] On consent, on December 30, 2019, the younger children, C.H. and Z.E.H. were placed in extended care with access to the parents and their older siblings. The issue of disposition regarding the two older siblings, Z.H. and T.H. proceeded to trial in March, 2020.

[8] On March 20, 2018, an order was made on consent that Dr. Kimberly Harris conducted a parenting capacity assessment on this family pursuant to s. 98 of the CYFSA. Her report dated September 10, 2019 was filed at trial and Dr. Harris testified.

[9] It became apparent during the trial that having the father in the home hindered the chance of having the children returned to the parents jointly. Therefore, the parents' plan changed mid-trial in that the parents would separate and only the mother would put forward a plan for the children to be returned to her care alone. I found that the last-minute plan to have the children returned only to the care of the mother given the control and influence the father had over her was only a temporary plan and not a true plan of separation.

[10] At the time of the trial, the children were placed in foster home who were members of a Metis community. The parents had a good relationship with these foster parents and if the children were placed in extended care, the birth parents wanted them to remain in this placement. In fact, at trial, the birth father indicated that he would be "honoured" if their present foster parents would obtain custody of the children, as he believed that they were taking good care of the children and trusted them.

[11] The birth father has had a difficult history with the Society as a child. The birth father was placed in care at a young age and adopted at the age of 6 or 7. He was abused by his adoptive parents and placed back in the care of the Society at the age of 12, where he continued to be bullied and abused. He does not trust the Society and sees the Society as his "abuser" and "hates them, they ruin lives" and they are "evil".

[12] For reasons outlined in the trial decision, on May 25, 2020 a final order was made placing the children T.H. and Z.H. in extended care with in-person access to the parents to be a minimum of 3 times a year, subject to the children's wishes, with both the children and the parents to be access holders and recipients. In ordering that the test for access in s. 105(5) and (6) of the Child Youth and Family Services Act ("CYFSA") had been met, I found that:

• The mother had been consistent in attending access, and although the father historically had not been consistent, he was more consistent recently.
• The workers saw positive interactions between the children and the parents during supervised access and the children were excited to see their parents.
• The foster mother testified that the children have a good relationship with their parents. All of the children were in the same permanent placement and the foster mother was committed to maintaining monthly visits with the children and their parents. If the children were to be adopted, she supported an openness agreement of a minimum contact of 3 times a year.
• Dr. Harris also noted a positive relationship between the children and their parents and that the children clearly love their parents. Dr. Harris observed "lovely moments" of parent-child interactions and found that there was a strong bond between the children and their parents. In Dr. Harris' opinion, there was a meaningful relationship between the children and their parents, and there was an importance of maintaining some level of connection with their parents, particularly given their Metis heritage and the importance of cultural connection.
• However, Dr. Harris could not say whether the relationship was beneficial to the children. Dr. Harris had concerns that the parents could undermine the children's placement in the future, and that there could be risks that the parents would make the children feel unsafe where they are living, and the children needed stability. However, Dr. Harris found that the benefits of maintaining a relationship with the father and their cultural connect outweighed any risk of undermining their placement. At that time, both parents were supportive of a continuing placement of the children with the current foster parents, and the father indicated at trial that he would not cause them any conflict.

[13] The test for access to a child in extended care under the CYFSA focuses on what is in the best interests of the child, with additional considerations of whether the relationship is beneficial and meaningful to the child, and if relevant, if the ordered access will impair the child's future opportunities for adoption. The introduction of the best interest test for access in April, 2018 is a less rigid and more flexible approach to deciding whether or not to order access to a child placed in extended care.

[14] The children's placement in the foster home where they were at the time of the trial broke down. All four children were moved to their present placement in March, 2021 and have resided there ever since.

[15] Since the extended care order and the children's move to the present foster placement, the parents' behaviour, and particularly the father's behaviour, has become increasingly concerning. The father clearly does not support the children's placement with the present foster parents and calls them "kidnappers".

[16] In 2021 and prior to the placement of C.H. and Z.E.H. for adoption, the Society served the required Notices of Intention to Place for Adoption for the two younger children, C.H. and Z.E.H. In response, the Office of the Children's Lawyer ("OCL") brought Applications for Openness Orders to both their older siblings and the parents. As the parents were only access recipients to C.H. and Z.E.H., they did not have the right to bring an Application for Openness. A consent order was made on September 22, 2021 for an Openness Order between the siblings. Thereafter, the OCL sought to withdraw their Openness Applications with respect to the parents, but as the applicants were minor children, Rule 12(2) of the Family Law Rules requires the court's permission to do so.

[17] In the decision to permit the OCL to withdraw their Openness Application, dated November 8, 2021, I found that due to the father's aggressive behaviour, an openness order for in-person openness was not in the children's best interest and could jeopardize their adoptive placement for the following reasons:

• 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 visit 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.

[18] The children, C.H. and Z.E.H. at that time were only 3 and 4 years old and had not articulated any specific views and preferences about ongoing contact with their parents. These children have no openness order with their parents and no ongoing contact with them.

[19] The parents appealed the trial decision of May, 2020. Pursuant to a decision of Justice Thomas of the Superior Court of Justice dated June 13, 2022, the parents' appeal was dismissed. The parents then appealed the Superior Court decision to the Ontario Court of Appeal. As the parents failed to perfect their appeal, this appeal was dismissed for delay on April 4, 2023.

[20] Since the trial decision in 2020 until May, 2023, the birth parents have attended for supervised visits with T.H. and Z.H. three times per year. These visits typically occurred in the community and always supervised by a minimum of two Society workers. After the children's placement for adoption in July, 2023, the CYFSA provides that all access orders are terminated. The Society terminated visits in October, 2023. The children's last contact with their birth parents was a phone call on October 2, 2023.

The Present Proceedings

[21] The parents were served with the Notice of Intent to Place for Adoption regarding T.H. and Z.H. on May 30, 2023. They are holders of access but did not bring any Openness Application within the 30 days as required pursuant to s. 196(1) of the CYFSA and thus were no longer able to bring an Openness Application.

[22] The OCL brought Openness Applications on behalf of both Z.H. and T.H. The parents were respondents and were able to file Answers. As they failed to do so, even after several extensions, they were noted in default on December 13, 2023.

[23] On March 26, 2024 the parents brought a motion to have the noting of default set aside to enable them to participate in these proceedings. This matter was most likely to proceed to a hearing and the OCL indicated that it was not her intention to call the parents as witnesses. I found that the court may wish to hear from the parents as the request is openness between the children and the parents. Therefore, on April 15, 2024, an order was made to set aside the noting of default of the birth parents, and the parents were given leave to serve and file Answers, which they did. The order further provided that should a hearing proceed, the parents shall only call themselves as witnesses without leave of the court.

[24] The Society engaged an Original Dispute Resolution method to attempt to resolve the Openness matter, however this process was not successful.

The Trial

[25] The parties filed a document called "Admitted Facts for Trial" outlining the history of this matter, the present circumstances of the children and generally their wishes.

[26] The OCL's only witness was the clinician, Jonathon Deluca. His affidavit sworn August 23, 2024 was filed, and he was subject to cross-examination.

[27] The Society's witnesses included two society workers, the adoption/resource and permanency planning worker, Sandra McNab, and Ms. McNab's manager, Stephanie Butt. The Society also called Constable Ashraf Waheed, Pastor R. L., and the adoptive mother S.H. The Society workers filed affidavits as their evidence in chief and filed several documents including the parenting capacity assessment of Dr. Harris dated September 10, 2019; Psychological Assessment reports for T.H. dated September 27, 2023 and Z.H. dated November 10, 2023; and Pediatric Neurodevelopmental Assessment reports for Z.H. dated October 19, 2022 and February 9, 2023.

[28] The birth parents both testified.

[29] The birth parents reside in the Huntsville area and did not have transportation to attend personally at the hearing. On consent, they participated virtually. Due to the birth father's challenging relationship with the Society as explained below, at times he had to leave these proceedings, indicating that he was "done for the day". However, the birth mother participated throughout.

Position of the Parties

Order Requested by the OCL

[30] It is important to outline at the outset the order that the OCL is requesting, as it is very detailed and is not normally the type of order the court would make for openness. The OCL is requesting the following order:

1. The children, T.H. and Z.H. shall have openness with their biological parents as follows:

   a) There shall be three face-to-face visits per year. All visits shall be supervised by the Society, its designate or a party hired by the Society, subject to the Society's consent, or in the event that the Society does not consent, visits shall be supervised by the Huron Perth Supervised Access and Exchange Program, or another access supervision service such as Brayden located within Huron County or Perth County, unless the caregivers of the children agreed otherwise in writing.

   b) Unless the biological parents and the caregivers for the children agree otherwise in writing, one visit shall take place on the last Saturday in October, one visit shall take place on the last Saturday in April and one visit shall take place on the last Saturday in July, subject to the availability of the supervisors. The duration of each visit shall be a maximum of 2 hours unless the children's caregivers agree otherwise in writing.

   c) Neither biological parent shall make any negative comments about the children's caregivers during any openness visits. They shall likewise refrain from any threatening or aggressive behaviour toward the children's caregivers, or anyone involved in supervising a visit, during or in advance of a visit. If they do not comply with this term, the children's caregivers shall have the discretion to cancel a visit and the supervisors of the visit shall have the discretion to terminate the visit in progress.

   d) The biological parents:

   i. Neither shall attend any place they know the children or adoptive parents to attend, live, go to school, go to church, or work, or within 200 meters of any such location except for pre-arranged openness that accords with this Order.

   ii. Neither shall make negative comments about the adoptive parents publicly or on social media. They shall refrain from calling the adoptive parents names on social media or any public forum.

   iii. Neither shall communicate with the adoptive parents directly or indirectly, except in accordance with this Order.

   iv. Neither shall attend at the offices of the Society unless in accordance with a previously arranged visit pursuant to this Order.

   e) Transportation of the children to and from visits shall be provided by the caregivers for the children.

   f) In the event that the biological parents breach any term outlined in paragraph (c) or (d), the caregivers of the children are permitted to file an unopposed application to terminate future openness, and the operation of this Order shall be stayed until the determination of that unopposed hearing.

[31] The OCL was also requesting an openness order between T.H. and Z.H. in the event that their placement together breaks down, which was consented to by all parties.

[32] Mr. Deluca, the OCL clinician, agreed he had not contacted the Huron-Perth Supervised access program to determine if they could assist with openness in this situation. He also agreed that he had never requested such an order on other openness cases. By requesting these terms, the OCL wanted to mitigate any risk of conflict between the birth and adoptive parents.

Position of the Society

[33] Ms. Butt indicated that the Society would not support in-person openness but would support openness in terms of updates provided to the parents. Any further openness in terms of virtual or phone calls would have to be with the consent of the adoptive parents.

Position of the Birth Parents

[34] At trial, the birth mother acknowledged that due to the negative history that the birth father has with the Society that invokes anger in him, it would not be good to have the father present during any in-person visits. She articulated that the birth father's relationship with the Society "needs to quit" or he will not have a connection with the children. Due to the abuse he suffered, the birth father just needs to know that his children are not being abused as he did not want the cycle of abuse to be repeated.

[35] Although the birth father wanted to have in-person visits with his children, he acknowledged that he needs to deal with his issues with the Society before seeing his children. However, he believed that the birth mother deserved to have in-person visits with the children.

Evidence at the Hearing

[36] The evidence at trial mainly consisted of the events since the children were placed in their present placement in March, 2021, the conflictual relationship between the birth and adoptive parents, and between the birth parents and the Society.

The Blog

[37] The Society acknowledged that a blog that was posted by the adoptive mother shortly after the children were placed in their care is what initially caused the relationship between the birth parents and adoptive parents to become toxic. The adoptive mother explains that she had a blog on Facebook to discuss the adoption process and issues with large families. She did not disclose any identifying information about the children or the birth parents. She spoke about the younger siblings, C.H. and Z.E.H. not fully remembering their birth parents and their struggles and confusion as they saw the adoptive parents as their true parents. Although the adoptive mother does not recall exactly what she said in the blog, she acknowledged at trial that it was inappropriate and she wished she had not made the blog.

[38] The society worker Ms. McNab testified that the blog included information about the children's personal struggles and comments about the birth parents and their parenting. She also agreed that it was inappropriate.

[39] The birth parents were able to search the adoptive parents on the internet after they discovered their names in the first openness hearing regarding the younger siblings and this is how they discovered the blog in the summer, 2021. The birth mother was very upset by the blog as she had only met the adoptive parents twice, and the adoptive mother was judging her as a parent on the blog after this limited interaction. She reported the blog to both the Society and the police.

[40] The birth father acknowledges that is it partly due to this blog that he has negative feelings about the adoptive parents as it spread false information about him.

[41] The birth parents commented on the adoptive mother's blog calling the adoptive parents "kidnappers" and "liars" who "stole their kids". The adoptive mother then shut down this posting and made no further Facebook blogs. She also wrote a letter to the birth parents, apologizing and explaining that it was not her intention to hurt them.

The Birth Parents' Continued Aggression Against the Adoptive Parents and the Society

[42] In September, 2021, there was an incident in the lobby of the Society offices where the birth father raised his hand to the now former Executive Director of the Society, Mr. Joliffe and was criminally charged. On June 27, 2022, the birth father was convicted of uttering threats to cause bodily harm for which he received a suspended sentence and was placed on a probation order for 1 year. The birth father explained that his actions were caused by his anger due to the Society lying in court.

[43] At the end of June, 2023, the birth father contacted the after-hours service with the Simcoe Muskoka Children's Aid Society, which is the jurisdiction where the birth parents reside. He reported that his children were being mentally and physically abused in their foster home and that the Executive Director from the Society has broken the law by kidnapping his children.

Voicemail Messages

[44] Portions of transcripts from voicemail messages from the birth parents (but mostly from the birth father) left for employees of the agency were filed. Recordings of many of these voicemails were played at trial. From April 13, 2023 to November 27, 2023, the birth father left 34 messages for society employees, including the Executive Director, society counsel, Ms. Tuer and several society workers. During this period, the birth mother also left messages.

[45] In these messages, the birth father indicates that:

• The Society has kidnapped his children.
• That he is going to "expose the shit out of the adoptive parents and will go right to their town as well and protest their goddamn stupid church bible bumping raping shit."
• "When are you going to return my property and restore my people."
• He threatens to make the Executive Director's life a "living headache".
• "I will stop at nothing to see you people in jail and suffer for the crimes that you committed".
• "These kids need to be home with my family... your agency drugged them behind our back. Changed their names without permission".
• "You need to return my property within 10 business days ... after that I am going to start charging you $5,000 a minute for withholding my property".
• "I am requesting that the adoptive parents resign for their actions of the blog …. they need to give up my children".
• "This is my court … you steal my property you pay".
• "I'm coming for your agency .. I'm coming for my children".
• "You're creating war .. a civil war".
• "You heartless bastard. I will get you".
• "I am the rightful owner of those children and you need to restore them immediately".
• "I'll make the adoptive parents' lives a living hell.. and I won't back down until it's done".
• "You will find me in Exeter exposing your foster family who destroyed my family's lives".
• "My words ain't going to put me behind bars, maybe for a night or 2, but I don't mind .. then I can get back out and do it all over again."
• To the Executive Director, the birth father said "how about you come to my restaurant where I work, and I'll spit in your food. Maybe I even pee in it, give you a little flakes".
• "I'm going to press charges against the adoptive mother for grooming my children and lying to my children".
• "I'm your worst nightmare, Mr. Wilson (the Executive Director) .. don't sit there and ignore my calls you cowardly fuck."
• "You wanna cross me, cross me I don't really give a fuck, I don't got nothing to lose".
• "Your foster parents committed a crime on social media which you've done nothing about but reward them. Guess what, rewards are over I'll be at their church next Sunday bitch".
• On June 7, 2023, he contacted the worker seeking contact information about the foster family as he was suing them.
• Shortly after the incident on November 10, 2023, the birth father left a message for Ms. Butt that, "I will make it a war and show up in the town of Exeter to demonstrate as much as I want". "If you want me silent, tell your stupid little cops to shoot me dead.. . I'm ready for the bullet bitch...the only way you will silence me is to shoot me dead".
• "I'm not backing down ... give me back by property or go to jail...start letting me see my children again or we're going to have a bigger war and a bigger issue...you want a war? You got it bitch".

[46] During some of the messages, the birth father is calm. However, in some he is very aggressive.

[47] The birth mother's messages use similar language as the birth father does, asking to have her "property" returned to her; that the Society has kidnapped the children from innocent people; that she will not give up until she gets what she wants; and that the adoptive parents have committed a criminal offence by exposing their case over the internet. In two of the birth mother's messages, you can hear the birth father in the background correcting her words.

[48] On August 18, 2023, after leaving numerous voicemail messages for the Society's Executive Director, the birth father left a voicemail message for Ms. Butt indicating that:

"You guys just kidnapped, take away, ..take everything that we own for your selfish purpose... all we're asking is that you guys to do the right thing and tell the truth, so nobody goes to jail over this. I got you on about four lists of crimes that you've all committed.. kidnapping, perjury, drugging someone's children without them knowing, .. grooming my children... these kids don't need to be stripped of us ... my kids hate you and they don't even like the adoptive parents.. have a nice day, but it won't be a nice day when I show up outside of your building, and then outside of the adoptive parents' church and expose the real lie that they are doing... don't mess with me. You guys created me, now you get to deal with me."

[49] On or about November 23, 2023, the birth father contacted the police to report concerns regarding the adoptive father. The police did not follow up with these alleged concerns.

[50] The birth father left voicemails for Ms. Butt on November 23 and 24, 2023 containing similar messages, such as requesting his "property" to be returned, threatening to put the society workers in jail, that he would go to Exeter to demonstrate; that the Society kidnapped his kids and the only way to silence him if to shoot him; and that he will make it a living hell he did as a kid; and the war is on. He also threatened to "steal her fucking dog, I am not a guy to mess with". Ms. Butt acknowledged that the birth father did not steal her dog but it made her fearful that he could.

[51] At the end of 2023, arrangements had to be made with the local police to ensure the safety of the adoptive home.

[52] On December 16, 2023, Ms. McNab received an email from the birth father apologizing for his behaviour, that he does not agree with the Society but understands how the workers may be feeling. He indicated that it was "not his intention to bring any harm or threats .. it is just a build up from when I grew up in care". However, two days later, the birth father sent a further email to Ms McNab but was more threatening in tone that she should be ashamed of herself that your team will lie to the courts and police, and that he "tells the truth about GAS corruption" and he can't promise that the public "won't be made aware of this illegal kidnapping".

Facebook Messages

[53] Messages from the birth mother's Facebook account from 2019 to 2023 were also filed. Messages were posted by both birth parents on this account, but mostly by the birth father. These posts make similar allegations against the adoptive parents and the Society that the voicemail messages include, including protesting the Society, that their children were kidnapped by the foster parents; that they have been robbed of their property; that they have illegally taken the children; that they are trying to silence the birth father by having him criminally charged, etc. They name the adoptive parents and where they live. They name the children and post pictures of them. All of this is in contravention of the CYFSA to make public information identifying the children who are the subject of child protection proceedings.

Result of the Threatening Messages from the Birth Parents

[54] Due to all of the threatening emails and voicemails to the society worker, society counsel and the Executive Director, the birth father was criminally charged. The criminal charge was resolved by a peace bond that was entered into on May 8, 2024 for a period of 12 months with terms to have no communication with the Society's Executive Director, Legal Counsel Ms. Tuer or any member of the Society except through legal counsel; and not to attend at any place that the Executive Director or Ms. Tuer lives or works except as required for family court appearances, except in the presence of legal counsel, and not to possess any firearms.

[55] Although Ms. Butt acknowledged at trial that in his emails the birth father was only threatening pursuing legal remedies against the Society, she still found the tone of the emails to be threatening. Ms. McNab believes that the birth father's actions are inappropriate, but she understands that his behaviour stems from his experiences as a child in society care.

[56] It is very positive that the adoptive parents and the Society have been able to shield the children from the negative behaviours of the birth parents.

Original Dispute Resolution ("ODR")

[57] In an effort to negotiate an agreement regarding openness between the adoptive and birth parents, the Society referred this matter to a private Original Dispute Resolution Facilitator to conduct mediation. Between the summer, 2023 to September, 2023, Ms. Butt estimates that the Society participated in 700 hours of mediation in an attempt to facilitate an openness agreement but without success.

[58] On July 4, 2023, in response to coordinating an ODR meeting, the birth mother sent an email to the manager, Ms. Butt indicating that:

"this war ends when you are all behind bars . . your clowns should not start a war you can't win.. at the end of the day those kids will be home .. I wonder what the adoptive parents would do if I protest outside their church.. I can bet that it does not say in the bible to commit perjury kidnapping discrimination oppressing people's families.. they should do the right thing and resign and withdraw from my kids".

[59] The birth mother sent a similar email to Ms. Butt on July 11, 2023.

[60] On July 11, 2023 in response to coordinating the ODR meeting, the birth father left a voicemail message for the manager, Ms. Butt that:

"I turned away your circle for two reasons: one - I don't agree with your human trafficking my child and second - I don't like to be bribed or forced to do things. I am not your bitch, your puppet, your slave. You need to withdraw before things get serious... restore my property, children, ... restore my family that you helped to destroy. Kidnapping is illegal... I'm going to put the adoption parents behind bars, I am more than capable".

[61] The adoptive mother participated in the ODR mediation. She estimates that she attended at least 10 meetings including individual sessions with the mediator and one virtual session with the birth mother. The facilitator outlined the rules for the session with the birth mother: to have respect for each other, no inappropriate language and the birth mother was to attend alone. The birth mother failed to respect these rules. She attended the virtual session with the adoptive mother while sitting in her vehicle and approximately 30 minutes into the session the birth father became visible on the screen and was in the vehicle in breach of the rules.

[62] The facilitator met the birth parents after this to advise that she felt that the mediation could not proceed. The mediation broke down on or about September 21, 2023.

Events of November 10, 2023

[63] During these first Openness proceedings, affidavits of the proposed adoptive parents identifying their full names and the town they were residing in were served on the birth parents. Therefore, the birth parents discovered the identity and location of the proposed adoptive parents.

[64] The adoptive parents and children attend a church in southwestern Ontario ("the church"). The children's service worker advised the birth mother of the religion that the children were being exposed to in the foster home. This is how the birth parents discovered the church where the adoptive parents attend.

[65] Prior to the incident on November 10, 2023, the birth father had started to make threatening calls to the church calling the adoptive parents "kidnappers" and that they had to give the children back to them. The police were advised of these threatening phone calls. The birth father also posted multiple messages on Instagram that he would come and protest either in the adoptive parents' town where they resided or at the church.

Constable Waheed

[66] Constable Ashraf Waheed testified at the trial. He is an officer with the Huron Detachment of the OPP. Constable Waheed and his partner responded to a call on November 10, 2023, regarding a concern at the church. Constable Waheed indicated that the police had been contacted by Pastor R.L. about an unwanted person at the church, being the birth father. Constable Waheed had been advised that the birth father had threatened to kill and harm R.L.'s daughter and CAS workers in the past and had been served with a trespass notice for the church. Constable Waheed acknowledged that this was only the information reported by the complainant and that he had no knowledge of an order preventing the birth father from being at the church.

[67] When he arrived at the church at 10:45 a.m., the birth father was speaking with his partner. Pastor R.L. arrived shortly thereafter and advised Constable Waheed that he wanted the birth father removed from the property. Constable Waheed found the birth parents sitting at a table in the basement of the church drawing on posters. The birth father explained that they were at the church protesting the fact that his children had been taken away from them. Constable Waheed asked the birth father several times to leave the premises. The birth father ignored his requests, stating that he had a right to be there as it is a public church. The birth father continued to sit at the table, clenched his fist, his face became red, and he grounded himself in his chair. The officers then deployed OC (oleoresin capsicum) spray, which is like pepper spray on the birth father.

[68] Once the OC was used, the birth father's demeanour changed, he became compliant, and was guided out of the church without incident.

[69] The birth father was arrested for failing to leave when directed by police to do so and resisting arrest. Constable Waheed confirmed that the birth father was compliant with treatment for his eyes by EMS services. The birth father was transported to the South Huron Hospital for further assessment.

[70] During this time, Pastor R.L. remained outside in the parking lot.

[71] In cross-examination, Constable Waheed confirmed that he did not hear the birth father uttering any threats and there was no charge for uttering threats laid. He did not witness any assault by the birth father against police. The birth mother was not combative against the police and was not yelling or screaming. When issued directions by the police, the birth mother complied. Neither birth parent threatened or tried to fight with the officers.

Pastor R.L.

[72] Pastor R.L. is the pastor of the church. In cross-examination, it was revealed that he is also the father of the adoptive mother. Pastor R.L. was not aware of any no trespass against the birth parents order prior to this incident, but he had been advised by his daughter that due to threats against her by the birth father, a police officer sat outside her home in his cruiser for several days for safety reasons. Therefore, he was on high alert for the safety of his family.

[73] Pastor R.L. recalls receiving a call from a staff member at his church about an incident that was occurring at the church on November 10, 2023 and he instructed staff to call 911. He testified that it was his staff and not him who made the initial call to the police. In cross-examination, the Pastor was challenged about the fact that he may have made the initial call to police. He acknowledged that if the 911 records indicated that he made the call then perhaps he did.

[74] He went to the church and found two police officers in attendance. He did not enter the church with the officers and stayed outside in the parking lot in his truck with the windows down. He told police that the birth parents had made death threats against the adoptive mother and accusations that she had kidnapped the children as he was informed of this by his daughter.

[75] He observed the birth parents exiting the church. He had never seen them prior to this incident. He observed the birth father coming out of the church accompanied by two police officers and was suffering the effects of having pepper spray administered to him. The officers were offering him water for his eyes, and he refused this and just went to his vehicle. Pastor R.L. indicated that no EMS attended on the scene and the birth father refused care.

[76] Pastor R.L. advised that the police told him that the birth father had "charged at them" and they had to pepper spray him.

[77] Pastor R.L. testified that he observed the birth mother berating the birth father and berating the officers. She was telling the officers that if they took their clown suits off, she would show them what kind of a woman she was. She was telling the birth father that he was not a "proper man" as he was not doing what she wanted him to do, being to engage in physical conflict with the officers. Pastor R.L. was emphatic that he heard the birth mother say this "loud and clear" as she was being loud, and they were walking towards his vehicle.

[78] During this incident, there was a food program occurring at the church with vulnerable mentally challenged persons. Pastor R.L. was advised by his staff that some of the staff and clients locked themselves in a room to hide during this incident. Pastor R.L. acknowledged that he did not see what went on in the church that day.

[79] Pastor R.L. is aware that there is a peace bond against the birth father prohibiting him from attending at the church. He has not seen the birth parents since that day and there have been no further messages left at the church by them.

Ms. McNab

[80] Ms. McNab was contacted by the adoptive mother shortly after this incident and was advised that the birth father had assaulted a police officer and refused medical treatment for the pepper spray, and that the birth mother was yelling and threatening during this incident. After hearing the evidence at trial, Ms. McNab acknowledges that what the adoptive mother reported to her was inaccurate, but that she accepted her version of events at the time. She did not follow up with the police or the birth father about what happened.

The Birth Parents

[81] The birth father wanted to attend at the church to protest and expose the adoptive mother as a "kidnapper" of his children.

[82] The birth mother states that when they first attended at the church on November 10, 2023 she asked the birth father to confirm with a member of the church that they had permission to attend at the church. The birth father spoke with someone from the church who gave them that permission, which the birth mother also confirmed directly with a member of the church. The birth father agreed that he would not protest on the church's property but just make the posters there.

[83] The birth parents sat at a table in the basement to make posters. After about 20 minutes, the birth father wanted to retrieve his coffee from his car, and when he returned, he was accompanied by two police officers. The birth father advised the birth mother that he was being arrested for trespassing, but the birth mother questioned this as they had been given permission to be there. The birth mother confirmed that Officer Waheed grabbed the birth father's arm to remove him, but the birth father was firm that he was not moving. The birth mother acknowledged that she told the officer "with your costume on" to talk to her like an adult as they had permission to be there, but she denied that any threats were made.

[84] The birth father and the police exited the church and advised the birth mother that they had given him pepper spray, and he needed EMS services. The birth mother saw Pastor R.L. in his truck and give a "thumbs up" as the birth parents exited the church.

[85] EMS services attended to the father and he cooperated to receive treatment. The birth father was taken to the hospital where he was arrested.

[86] Neither birth parent saw any damage that had been done in the church, and the birth father confirmed that he did not break anything in the church.

[87] The birth father basically confirmed the birth mother's story of what occurred at the church. He testified that they attended at the church to protest and "raise awareness". He was not resisting the officers and they assaulted him by grabbing his arm and pepper spraying him.

The Adoptive Mother

[88] The adoptive mother testified that she believed that the birth parents knew that they were not to be at the church and assumed that the Society told them not to attend anywhere they knew the adoptive parents would be, including the town where they live.

[89] The adoptive mother acknowledged at trial that she was not at the church on November 10, 2023 when the birth parents were there. However, this incident had a significant impact on her as it took away her sanctuary and a place where she felt safe and at peace. She indicated that she was later told that the birth father was charged with trespassing or assaulting a police officer. At trial, in cross-examination when asked about the death threats against her by the birth father, the adoptive mother was not clear exactly what the birth father had said. She assumed that as the police used pepper spray on the birth father, and due to the state of the church basement after the birth parents left, that the birth father must have been aggressive. She also testified that the birth mother was yelling and screaming at the police, even though this is not the testimony of Constable Waheed.

[90] The adoptive mother attended at the church after the birth parents left and items were scattered on the floor; there was broken glass and some of the donations given to the church were broken. It was not clear how the adoptive mother attributed this damage to the actions of the birth parents.

[91] The birth father's charges were resolved by way of a peace bond for a period of 12 months dated May 16, 2024, including terms not to have direct or indirect contact with Pastor R.L. or the adoptive mother except through legal counsel; not to attend at the subject church or where Pastor R.L. or the adoptive mother resides or works; and not to possess any weapons.

[92] The latest TikTok video by the birth father from September 16, 2024 explained below may be a breach of this peace bond. The adoptive mother has contacted the police after seeing the TikTok video. When advised of the peace bond at trial, the adoptive mother indicated that this did not make her feel any safer as it was already breached.

Recent TikTok Videos

[93] Four recent TikTok videos were played at trial that were posted from the birth mother's account but only the birth father is shown in the videos. Two of the videos are after the peace bond against the Society and the adoptive parents. Portions of these videos include the following content:

March 11, 2024:
[94] The birth father indicates that he hates the CAS and the foster parents, and they both should be in jail. The foster parents corrupt children and place them on drugs so they forget their parents. They kidnap children. He ends the video by saying "fuck the Executive Director of the CAS; fuck Barb Tuer and fuck the adoptive parents (who he names)". No one holds dominion on how he speaks.

March 31, 2024:
[95] The birth father sends an Easter message to his children, that they have been kidnapped by the Society and the adoptive parents (who he names). He tells his children that he will make sure that one day they are home and never near the liars that have them.

September 9, 2024: (one week before the trial)
[96] The foster parents have manipulated the children. He is not allowed to expose them anymore or else his wife will not be able to see his children. He will not call the foster parents clowns anymore but will call them fascist pigs. "I will post whatever the fuck I want on-line, off-line and in the community". My wife has never done anything to our children, but they are upset with him as he grew up in their system and tells the community about them (meaning the Society).

September 16, 2024: (the first day of the trial)
[97] Today they will be listening to the lies that will be told to the judge. They don't deserve to lose their children/property.

Effects of the Birth Parents' Aggression on the Adoptive Parents

[98] The parents have messaged the adoptive mother multiple times on Facebook and Instagram. The messages come from the birth mother's account but the adoptive mother knows that it is the birth father speaking. He has called the adoptive parents kidnappers, liars and accuses them of drugging the children. He uses foul language and demands that they do the right thing and return the children. The last messages she received were from 6 to 8 months ago. She has now blocked the birth parents.

[99] Due to the concerning messages from the adoptive parents, in May, 2022, the adoptive parents decided to leave their community and move away to be somewhere safer. Moving was very difficult on their entire family, but particularly for T.H. and Z.H. as they thought they had to be given away to another family and were very sad. T.H. and Z.H. had to be constantly reassured that they would be staying with their family.

[100] When asked at trial what effect the recent TikTok posts had on her family, the adoptive mother became very emotional. By adopting the children, she feels like she is trying to do something that is heartbreaking and beautiful at the same time. But she feels harassed, and now feels like she has to "look over her shoulder" at all times and must always be aware of her surroundings because of the potential risk posed by the birth parents. The police have had to become involved and have surveilled the area where they live and the children's schools.

The Birth Parent's Response to their Aggression

[101] At trial, the birth father explained in his own words his experience as a youth with the Society. When he was in foster care as a young child, he was burned with cigarettes, placed in cold showers, locked outside in cold weather, hit with objects and called names. He suffered further abuse when in his adoptive home starting at the age of 7, including having his door tied shut at night, thrown down flights of stairs and beaten. At the age of 10 or 11, he started running away from his adoptive home, and then placed back in foster care. He was abused in group homes. He reported the abuse but no one heard his voice and nothing happened.

[102] The birth father indicated that he sees his own children mentally going through what he did and he worries that they are being mentally abused.

[103] The birth father admits to being aggressive in his voicemail messages, but he is just "telling the facts". He wants his voice to be heard. At trial, the father defended his voicemails as appropriate as the Society "thinks it is appropriate to sell children". The birth father was clear at trial that the children are "his" and he will continue to post on social media to get his message out about his beliefs and "do what he needs to do". He could not promise that he will refrain from protesting.

[104] When asked if the birth father would abide by an order not to say negative things about the adoptive parents on social media, he indicated that he would continue to take a stand against both the Society and the adoptive parents "until justice is served". Even if there was an order that if the birth father said negative things about the adoptive parents on social media, he would not be able to see the children, the birth father was clear he still would not abide by the order as they are lying to his children, that is a form of mental abuse, and he has a right to freedom of expression. Even if there was an order that the birth father could not attend anywhere the adoptive parents or children live, work, attend church or go to school, the birth father was clear that he could not be banned from a town as that is against his civil liberties. He stated he can protest wherever he wants to in Canada.

[105] However, the birth father asked the court not to punish the birth mother if he could not stay off social media.

[106] Regardless of whether there is an openness order or not, the birth father indicated he will continue to post things about the adoptive parents on-line. His intention is to expose the truth and make sure that people who break the law go to jail.

Access Visits

[107] After the order of May 25, 2020, the Society arranged for 3 annual visits between the parents and the children. Although the birth father is generally appropriate with the children, he is triggered when society workers or the adoptive parents are present for access.

[108] The adoptive parents attended one visit with the birth parents and the children for the final visit between the birth parents and C.H. and Z.E.H. on July 22, 2021. The adoptive mother thought it was important for her to establish a relationship with the birth parents if there was to be contact in the future. The birth parents did not know her identity at that time; only that she was the foster parent. The adoptive mother explains that this visit did not go well; at times the birth father was yelling and swearing at the society workers and threw a chair. The birth parents were upset about the children being in care and wanted to know how they could get them back.

[109] The birth mother testified that they were unaware that this would be their last visit with C.H. and Z.E.H. She confirmed that the birth father had a disagreement with the workers, but no chair was thrown, and the police did not attend that visit. After the birth father had the disagreement with the workers, he was redirected to spend time with the children and the visit did not end. The birth father confirmed the birth mother's evidence and said that he confronted the workers about telling the truth to the children. He denies throwing a chair: only that he picked up a chair to sit on it.

[110] Despite the birth father's threatening voicemails commencing in the spring, 2023, the Society arranged a visit between the children and the birth parents for May 15, 2023. The visit took place at a park, supervised by 2 society workers. The visit went well and the father remained calm during this visit. This was the last in-person visit for the children with the birth parents.

[111] On July 4, 2023, the children were formally placed for adoption and the access order from May, 2020 was terminated. A placement for adoption could not have occurred during the period when the birth parents' appeals were outstanding. Due to safety concerns and the growing animosity by the birth parents against the Society, the Society did not schedule further in-person visits. In August, 2023, the birth mother requested to speak with the children by phone, but the father interrupted the conversation and indicated that he could "deliver war" on the Society.

[112] A phone call was arranged between the birth parents and the children on October 2, 2023. Ms. McNab supervised the call and the birth parents spoke with each child separately. Ms. McNab indicated that the conversations were generally appropriate. The birth parents asked about the activities the children did over the summer and about Halloween. The birth parents expressed that they loved and missed the boys. However, the mother asked Z.H. "are you hurting", and Z.H. did not answer. This was the last contact the birth parents had with the children.

[113] Ms. McNab explained at trial that the decision to end the birth parents' visits was due to the incident on November 10, 2023, the charges were laid against the birth father, and the aggressive voicemail messages to the Society by the birth father. However, legally, the parents' access was terminated after they were placed for adoption. Ms. McNab acknowledged that the Society relied upon the adoptive mother's version of events from November 10th, which she now acknowledges was not entirely accurate. Ms. McNab explained the concern with maintaining only the birth mother's visits was her inability to keep the father away and the birth father's unpredictable behaviour.

[114] On December 18, 2023, the Society provided a letter to the parents explaining that no further visits would occur, and no further information regarding the children would be provided as the children were now placed for adoption.

The Children's Reaction to Visits

[115] The adoptive mother explains that she would tell the children about visits before each visit, and they would become hyper and dysregulated. After some visits, the children would be excited and show them the gifts from their birth parents. After visits, the children were very dysregulated and extremely hyper and impulsive. T.H. would self-touch and gorge for weeks after the visit. Z.H. would have problems with hoarding.

[116] It is the adoptive mother's evidence that these problematic behaviours would continue for months after a visit, so with 3 visits in a year, their problematic behaviours would continue. These negative behaviours even occurred after the phone call in October, 2023.

[117] On one occasion, the children came back from a visit with their birth parents and told the adoptive parents that they were "kidnappers", as their birth father had told them this. The birth father confirmed at trial that he did tell T.H. that the adoptive parents were kidnappers and he "still stands by that today".

[118] After May, 2023 when in-person visits have ceased, the adoptive mother indicates that the children's behaviours have improved and negative behaviours such as hoarding, lying, stealing, gorging and self-touching have almost completely stopped. She indicates that they seem now like "typical kids".

The Adoptive Mother

[119] The adoptive mother testified that all 4 of the children were placed in her home together on March 30, 2021. She and her husband have 7 biological children of their own ranging in age from 18 months to 12 years old. In total, they have 11 children residing with them. She is educated as an Early Childhood Educator, but now does not work outside of the home. Since the children's placement in their home, she and her husband have committed to be their "forever home".

[120] The adoptive parents have fostered for the Nairn Family Homes for over 11 years. As foster parents, they have received training, including Pride training and bi-weekly training on issues such as attachment, behaviours of children, adoption processes and indigenous issues. They had additional training to be adoptive parents and were approved for adoption.

[121] In her experience as a foster parent, she always had a good relationship with the children's birth family and stayed connected with them. She acknowledges that she does not have a good relationship with these birth parents, which is something that has never occurred before.

[122] Shortly after C.H. and Z.E.H. were placed with them, they were placed on adoption probation. They changed C.H.'s name after he was placed on adoption probation to "A", but still called him by his birth name. However, his health card was in his new name and many refer to him as A. Slowly, after about a year, C.H. stated that he liked his new name and wanted to be called A. The youngest child, Z.E.H. continues to have her birth name.

[123] After C.H. chose to be called A, T.H. and Z.H. also wanted to have new names. The adoptive parents did not press this issue but told the children that when they went on adoption probation, they could choose a new name but could still be referred to as T.H. and Z.H. as that is who they are. Therefore, on adoption probation their names continued to be T.H. and Z.H., as the adoptive parents wanted to respect their birth names. However, the boys chose to have new middle names, "C" and "L". Z.H. chose "C" as there is a boy in his class by that name. Z.H. chose "L" as he thought this name was cool.

[124] At school, the boys started to ask to be called "C" and "L". The adoptive mother had many conversations with them about not having to go by new names as their sister's name is still Z.E.H. The adoptive parents did not call the boys by their new names until after they were on adoption probation, although the boys used their new names before that time.

[125] Ms. McNab confirmed that the idea of a name change came from T.H. and Z.H. directly and not the adoptive parents.

[126] Although T.H. and Z.H. know that they are adopted, all of the siblings in the home are very close with each other.

The Children

[127] By the time they were placed in the adoptive home in March, 2021, the children had already been in foster care for 3 ½ years. T.H. and Z.H. came to the adoptive home with difficult behaviours.

T.H.

[128] The adoptive mother describes T.H. as outgoing, loves music and to dance, loves cars and collecting things. He will light up a room with his smile. She described T.H. as "easy going" and her best-behaved child.

[129] The adoptive mother believes that T.H. has improved greatly since being placed in their home. He has improved in his academic and his fine and gross motor skills. Services have been put in place for him such as physiotherapy, occupational therapy and speech therapy, as he has a language disorder. Due to his special needs, it takes a while for T.H. to retain information and difficult to process what is in his brain.

[130] In September, 2023, T.H. had an educational assessment. He is on an IEP and an IPRC. He is supported at school with technology, occupational therapy and physiotherapy due to concerns with his gross and fine motor skills.

[131] In T.H.'s Psychological Assessment dated September 27, 2023 by Dr. Ross, it was noted that:

• (a) T.H. was known to have communication difficulties because of a "processing speed" and language-based challenges. He required additional support to read. He has been diagnosed with ADHD and has central auditory processing deficits. He is on medication for his ADHD.
• (b) His intellectual skills fell below expectations for his age (6th percentile) and language production was difficult for him. T.H. often requires pauses to formulate his ideas and find words to express himself.
• (c) There were differences noted in T.H.'s functioning at school and home. He could demonstrate adaptive skills expected at school, but lower levels of ability were seen at home. In both settings, there were concerns regarding T.H.'s communication skills.
• (d) T.H. was described as having a Language Disorder, which has implications at social and academic levels. This can result in social withdrawal. It was noted that "when combined with an early life history that included that modelling of socially undesirable behaviours, it is understandable why T.H.'s language difficulties have resulted in social challenges".
• (e) T.H. may have a Specific Learning Disability as he was functioning below grade expectations.
• (f) The more reactive behaviour that occurs at home likely reflects a combination of fatigue after a day at school and the feeling of safety that T.H. has with his family. Dr. Ross indicated that "at some point, frustrations will need to be expressed by T.H. and he does not have the language skills to be able to do so effectively. Consequently, behavioural actions will be one of the few consistent tools he has available to him".
• (g) T.H. has the presence of Borderline Intellectual Functioning. This was not a formal diagnosis, but an acknowledgment that T.H. experiences impairment across multiple areas of functioning.

[132] When he was first placed in their home, he was gorging on food, emotionally dysregulated, very active, could not concentrate and was self-touching. The adoptive mother has seen that in the last 8 months or so, these behaviours have disappeared.

Z.H.

[133] The adoptive mother describes Z.H. as outgoing, loves to be outside and explore, is hands-on with nature and playing, creative, loves to build things and laughs a lot.

[134] When Z.H. was first placed with them, he was also very emotionally dysregulated, extremely hyperactive and always touching things. He would steal, lie, cheat and hoard, particularly things of little value like rocks. Z.H. is also on medication for ADHD.

[135] The adoptive mother has also seen a significant improvement in Z.H.'s behaviours over the past 8 months.

[136] Z.H. is connected with CPRI (Child & Parent Resource Institute) for an attachment clinic as his behaviours could be linked to an attachment disorder. The adoptive mother is part of an attachment group through CPRI to educate parents and give them tools to navigate attachment issues. She is able to have daily communication with a worker there, Jo Johnston, who also works with Z.H.'s school. However, the adoptive mother did not feel the need to have any contact with Jo over the past summer as there were no significant issues with Z.H.'s behaviour.

[137] Z.H. now has an IEP at school to reinforce the special services that he needs. Z.H. also has an IPRC given his diagnosis where the school staff and caregivers meet bi-annually to discuss Z.H.'s behaviours and needs. Z.H. has extra support in class including an Educational Assistant for math and literacy, and access to a chrome book or tablet to assist with fine motor skills.

[138] In Z.H.'s Psychological Assessment dated November 10, 2023 by Dr. Ross, it was noted that:

• There were differences noted in Z.H.'s functioning at school and at home. At school, there were no significant concerns with Z.H.'s attention, planning and emotional control abilities. However, similar skills were not seen in the home to the same degree. At home, Z.H. requires support to stay on-track with activities, he does not reliably control his feelings, and would not engage in work-type tasks without being prompted. The adoptive mother agreed with these comments but indicated that the school may minimize Z.H.'s behaviours in general. She had concerns that the school system did not properly support children.

[139] In cross-examination, the adoptive mother acknowledged that during the summer, 2023, Z.H. was exhibiting behaviours such as stealing, lying, was destructive and very impulsive. By November, 2023, Z.H.'s behaviour was hyperactive to the point that he was always vibrating and twitching. Z.H. had exposed himself to other children in the home and he was defiant and argumentative. In June, 2024, the adoptive mother was reporting that Z.H. had meltdowns once a week, was hoarding items and argumentative and defiant.

[140] When put to the adoptive mother in cross-examination that from July, 2023 to September, 2023, Z.H.'s negative behaviours actually increased, but the visits with the birth parents had stopped in May, 2023, the adoptive mother explained that it took months after a visit for the children's negative behaviours to subside, but then another visit would occur. The children were unaware that visits ended in May, 2023 so they anticipated that another visit would eventually occur.

[141] Ms. McNab confirmed that Z.H.'s destructive behaviour has continued throughout his time in care, but has improved somewhat. He continues to have melt downs, is argumentative and defiant and has hoarding issues. His poor impulse control continues to lead him to misrepresent the truth.

[142] Ms. McNab also acknowledged that after the children were placed on adoption probation in July, 2023 there was an increase in Z.H.'s negative behaviours. She explained that it is common in these situations for children's behaviours to be negative, particularly if they have attachment issues. Children are aware of being placed for adoption as they now can use a new last name and at times, they have to meet with a lawyer to consent to adoption. The society workers will explain the meaning of adoption to older children. At times, a child may not truly believe that this will actually be their "forever" home.

[143] Although it is not clear that the children's negative behaviours have significantly decreased since the contact with their birth parents has stopped, there have been behavioural issues around access visits.

The Children's Views and Wishes

Evidence of Jonathon Deluca

[144] Jonathon Deluca testified. He has been a clinician with the OCL since 2004, and was appointed in July, 2023 to assist Ms. Wisking to present the children's views and wishes in the context of the Openness Applications.

[145] Since July, 2023, he met with the children four times. All meetings occurred in the presence of Ms. Wisking and privately and individually. Mr. Deluca also attended meetings with Ms. Wisking and the foster mother by video and the birth parents by phone. He reviewed the pleadings, the trial decision from May, 2020, Dr. Harris' parenting capacity assessment, and psychoeducational assessments of the children.

[146] Mr. Deluca indicated that he has been trained in the forensic model of interviewing children, which is what he uses in his practice with the OCL and in his interviews with these children. This type of interviewing helps to encourage a free narrative from the children. The special needs of the children outlined in their assessments did not give him any concerns about the children expressing their views and wishes.

[147] With respect to T.H.'s views:

• T.H. referred to his adoptive parents as "mom and dad" and would sometimes refer to his birth parents as "old mom and dad". T.H. enjoyed life in his adoptive home. He liked having lots of siblings, but Z.H. is still his favourite sibling to play with.
• T.H. was consistent that he liked visits with his birth parents. T.H. said visits with his birth parents made him happy. His birth parents bring him toys and pictures. He said there was nothing bad about the visits. He said the best part about visits was going to parks. He scored visits as being a "10/10".
• When asked if he wanted "another adult" present during visits, he answered "yes".
• T.H. stated that he would be very sad and scared if he did not have visits and "a little sad" if the visits were less frequent. T.H. indicated that if he could not see his birth parents in-person but would send and receive cards and letters he indicated that he would feel "a little bit sad".
• In August, 2024, T.H. had not seen his parents since May, 2023, and he reported that he felt sad that he had not seen them in a long time.
• T.H. stated that he wanted the judge to keep visits happening, with the frequency being the same, being three times a year but that visits should be longer.

[148] With respect to Z.H.'s views:

• Z.H. also referred to his adoptive parents as "mom and dad" and to his birth parents his "other parents" or "old mom and dad" or just "mom and dad".
• Z.H. said his other parents were "fun" and "silly" and that "they love us".
• Z.H. was happy about visits with his birth parents and liked everything about these visits. He said that visits were a "5/10" and could be better by "having fun" with his birth parents. He said that during visits with his birth parents he liked "going to fun places, like bowling, seeing animals and getting toys".
• Z.H. indicated that he would be sad if he no longer had in-person visits with his birth parents and sad if visits were less frequent.
• Z.H. liked the frequency of visits and even wanted more visits.
• Z.H. also wanted to have another adult present during visits but did not know why.

[149] The idea of having an adult present was not a suggestion that came from the children but was in response to a question posed by Mr. Deluca.

[150] Mr. Deluca agreed that the Society was a trigger for the father, and if the Society is involved in openness, they should take an arms-length role. He also agreed that the adoptive parents should not be involved in openness and was worried that the children would witness aggression between the adoptive parents and the father.

[151] The children did not speak about witnessing conflict between their birth parents and adoptive parents. The children only stated that their parents were not friends with their "old" mom and dad but did not articulate why.

[152] Mr. Deluca expressed concerns that the children having contact with the birth parents could cause a break-down in the adoptive placement, and this is why the OCL included the terms in their proposed order that if the birth parents do not abide by certain terms, the openness should be terminated. He acknowledged that the terms suggested by the OCL were similar to a supervision order given the potential risks of harm to the children, and parameters on openness would help to mitigate that risk.

[153] However, Mr. Deluca was also concerned that not having contact could also cause a breakdown in the children's placement. Mr. Deluca understood that the children are sad and upset about not having contact with their birth parents and this may manifest into behavioural issues. The children could also try to search out their birth parents through social media and keep this secret. There is also the dynamic that the older siblings could be having contact with the birth parents, but the younger siblings would not have this contact.

[154] Mr. Deluca agreed that the children's permanent plan for adoption should take precedence over contact if the parents cannot abide by the terms that the OCL has requested.

Other Evidence of the Children's Views

[155] Ms. McNab indicates that the boys love their parents and are positive about their visits with their birth parents. She does not question that the boys want to continue to see their birth parents. Both children indicated that the workers should still be there during visits. Z.H. indicated that he wanted workers there as he did not feel safe as his dad gets mad.

[156] The adoptive mother acknowledged that T.H. and Z.H. love their birth parents and their birth parents love them.

The Children's Feelings about Adoption

[157] When the adoption worker, Ms. McNab placed the children for adoption on July 4, 2013, she met privately with both boys. Both children were excited to be adopted, expressing the same things that their mother is nice, takes care of them, loves them and gives them hugs and kisses. Their dad spends time with him and does fun things with him.

[158] The adoptive mother described the boys as being "happier and lighter" since they were placed for adoption.

[159] Ms. McNab continued to meet privately with the boys after they were placed for adoption approximately once per month and they continue to be very positive about their placement. In February, 2024, T.H. indicated that he was excited to have his adoption finalized. Both boys are excited about their name change. However, Z.H. was both happy and sad about the adoption. Ms. McNab explained that this is understandable as it also represents for Z.H. a loss of his family of origin.

Efforts to Connect the Children to their Metis Community

[160] The Society has an obligation to take all reasonable steps to determine the specific indigenous community that the children are from and to connect them to that community. This obligation is ongoing even after findings and an order for extended care are made.

[161] The father is Metis, but he was adopted and does not know exactly which Metis community he is connected with. During the assessment prior to the protection trial, the birth father told Dr. Harris that he knows little about his culture.

[162] During the present trial, the birth father indicated that he has Metis, Irish and German heritage. About 4 or 5 years ago, he discovered that his paternal great grandmother was Metis. He is working on connecting to his Metis culture and does a lot of smudging. At trial, the birth father testified that he also wants the children to know about their Irish culture, as this part of his heritage is of primary importance to him.

[163] Prior to the extended care order, the agency made efforts to learn more about the children's Metis heritage and tried to foster this connection as follows:

• The Society has a policy to review with both the Executive Director and the legal department the cultural connections with every indigenous child in care.
• There was the involvement of a family finding worker to look for cultural and kinship connections so that all options for the children could be canvassed before placing them in extended care. The Society made contact with the father's family in western Canada to determine more about his cultural heritage, without success.
• The Society attempted to connect the children to their Metis culture by attending Metis events such as a Christmas feast. In May, 2019, all four children were placed in a culturally matched home through the Eagles Nest foster agency. The foster parents at that time were committed to encouraging the children's Metis culture.

[164] After the extended care order of May, 2020, the Society continued to make efforts to determine the particular Metis community that the father was connected to, including:

• The children were involved with a few indigenous advisors to assist to make cultural connections, the latest one being Christian Denis. However, Ms. Butt, the manager, could not say if this connection with Mr. Denis had actually occurred. Ms. McNab advised the adoptive parents about an event at Mr. Denis' property for September 30th that they could attend. Mr. Denis is not Metis.
• Barry Maracle is also an indigenous mentor and support for Societies to provide connections for children. However, he is Mohawk and not Metis.
• The children were initially placed in a long-term foster home who had Metis heritage. However, this placement broke down.
• The present adoptive father is also of Metis heritage. He is still trying to determine his exact community. The adoptive mother testified that this is a lengthy process to piece together his ancestry.
• The Society has connected the adoptive parents to indigenous organizations such as the Healing of the Seven Generations and other organizations in London. Ms. Butt could not say if these organizations were specifically related to the Metis culture.
• The adoptive parents stay at a trailer or cottage in the summer close to the Aamjiwnaang reservation. However, this is not part of the Metis community.
• As part of the adoption placement process, the Society sent letters to Indigenous Affairs and the Metis Nation to determine if they have records for the children, with negative responses.
• The Society was hoping through the ODR process further cultural connections could be made. The ODR facilitator, Ms. Stewart has offered to assist the adoptive parents to determine both the adoptive father's and the children's specific Metis communities.

[165] Before being placed for adoption, the Society contacted the Metis Nation of Ontario as they are required to do pursuant to s. 186 of the CYFSA to determine if they would be putting forth a plan for the children. In or about May, 2023, the Society also served a Notice of Intent to place the children for adoption to the Metis Nation of Ontario as they are required to do pursuant to s. 197 of the CYFSA. As the Society was unaware of a specific Metis Community the children may have a connection with, that specific community could not be served. However, as these children were not specifically part of their Metis community, the Metis Nation did not know why they were being contacted and did not provide any plans for the children for placement or to be connected to their culture.

[166] The adoptive mother understands that the father may have obtained his Metis heritage through Alberta as 3 of the 4 children were born there. She understands that the birth father's Metis heritage comes from his grandparent but does not know if this is from his paternal or maternal side of the family. She believes that there are approximately 8 different Metis communities in Alberta. The adoptive parents have educated the children about Metis culture and indigenous history. They have books on indigenous culture, and they have a Metis flag in their home. They have taken the children to indigenous events in their community. During a visit with their birth parents in 2021, the birth parents had done some planting with the children, and the children brought the plants back to the adoptive parents' home and they set up a healing garden. The adoptive mother described this as a celebration of what they had done with their birth parents.

[167] Ms. McNab agreed that the children should have a cultural connection and agreed it would be helpful for the children to know their specific Metis community. This would give them a better sense of who they are and can assist to stabilize their placement. She also agreed that the children need a connection to their roots and part of that connection was their birth names, which have now been changed. She understood how changing the children's names is a trigger for the birth father.

Efforts by the OCL

[168] The OCL also made efforts to determine the children's Metis community. Mr. Deluca indicated that he was advised that in 2018 a genogram was completed on the father's background through the Waterloo CAS, but he could not access the genogram on the computer. He did not have detailed information about the father's Metis heritage and wanted any information about the specific Metis community that the children could be connected with. He made a total of 13 requests from the Society for further cultural information on the children without a response.

[169] Mr. Deluca spoke with the father about his Metis heritage and the father gave him names of family members with connections with his Metis culture. With this information, Mr. Deluca did some online searches through ancestry.ca but was not successful to determine specifics about their Metis heritage.

[170] Although the OCL was critical of the Society's efforts to determine the specific Metis community that the father was connected to, in cross-examination, Mr. Deluca could not say that the Society did "not do their job"; only that they did not respond to his requests for information. He did not contact the Waterloo CAS to determine what efforts they also had made to determine the father's specific Metis community.

[171] I find that the Society made substantial efforts to try to determine the children's specific Metis community and to connect them to their culture. What was concerning was the lack of communication between the Society and the OCL, and the Society's lack of response to the OCL's inquiries for information. Both agencies should have coordinated efforts to attempt to determine the children's specific Metis community.

Aunt Michelle ("Michelle")

[172] The children do have an ongoing relationship with extended birth family through their maternal aunt.

[173] Since the children were placed in care, the maternal aunt Michelle has had community visits with the children and expressed an interest prior to the extended care order in putting forth a plan for the children, which did not materialize.

[174] The adoptive mother continues to be in contact with Michelle and has met Michelle multiple times including privately to build a relationship with her. The children had an in-person visit with Michelle and the adoptive mother after they were placed in the adoptive home. However, Michelle moved to Quebec approximately 1 ½ years ago. There have been no in-person visits since Michelle moved away. Michelle planned to return to Ontario in October, 2024 after the trial and they will arrange a visit with her and the children.

[175] The birth mother acknowledged that she does not have much contact with her sister. Until recently, the birth mother had not seen Michelle since in or about 2018, but she did have recent communication with her after their father passed away.

[176] The adoptive mother believes that Michelle is a safe person to build a relationship with and is supportive of continuing the children's relationship with her. She does not believe that an openness order is required with Michelle for her to continue that relationship.

The Statutory Pathway

[177] With the implementation of the CYFSA in 2018 and the Federal Act: An Act respecting First Nations, Inuit and Metis children, youth and families ("the Federal Act") in 2020, as argued by the OCL, the landscape of openness has shifted and expanded in the past 6 years due to the focus in the legislation on the rights of children to have their voices heard, and the importance to children and their well-being that comes from connection to family and culture.

[178] In the preambles to both the provincial and federal legislation, there is a commitment, in the spirit of reconciliation, to ensure that FNIM children maintain connections to their culture, communities and where possible their families. As indicated by Justice Wolfe in Kina Gbezhjomi Child and Family Services v. M.A., 2020 ONCJ 414 when discussing both the CYFSA and the Federal Act, at paragraph 43:

"Both Acts instruct the courts on the need to approach child welfare differently when dealing with Indigenous families, and with a view to recognizing the importance of continuity of culture and family".

[179] As these children are Metis, the court must apply both the provisions of the CYFSA and the Federal Act when considering openness to their birth parents.

The CYFSA:

[180] "Openness" is defined under Ont. Reg. 155/18, section 94(1) as:

"Openness" includes written, verbal or face to face contact or communication where,
(a) the communication may be direct or indirect and may permit the disclosure of identifying or non-identifying information, and
(b) the frequency of contact or communication may vary from episodic to ongoing.

[181] An "openness order" is defined in s. 179(1) of the CYFSA 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 had 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.

[182] The test for making an openness order when there is an order for extended care with access, in accordance with s. 196(7), (8) and (9) of the CYFSA is as follows:

S.196(7) Openness Order - 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.
(8) SAME - In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent, to comply with the arrangement under the openness order.
(9) CONSENT OF THE SOCIETY REQUIRED - The court shall not, under this section, direct a society to supervise or participate in the arrangement under an openness order without the consent of the society.

[183] As the children are only 9 and 10 years of age, the criteria under s. 196(7)(c) does not apply.

[184] The definition of best interests in relation to openness and adoption is different from the best interest test that applies in child protection proceedings under the CYFSA. The best interests when applied to openness is defined under s. 179(2) of the CYFSA as follows:

s. 179(2) Best interests of child
(2) 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 Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis 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, and
(viii) the effects on the child of delay in the disposition of the case.

The Federal Act: An Act respecting First Nations, Inuit and Metis children, youth and families

[185] The Federal Act came into force on January 1, 2020. This legislation was enacted to ensure that courts and child protection agencies follow minimum standards with respect to making decisions about FNIM children and to supplement the provisions of the CYFSA. Where standards under the CYFSA surpass or exceed those in the Federal Act, the CYFSA will apply. Where standards set out in the Federal Act surpass or exceed those in the CYFSA, the Federal Act will apply.

[186] Specifically, cultural continuity in s. 9, the best interest test for indigenous children in s.10 and promoting the child's attachment and emotional ties to the child's family if they cannot be placed with family in s. 17 must be considered. These provisions provide as follows:

Principle - best interests of child
s. 9(1) This Act is to be interpreted and administered in accordance with the principle of the best interest of the child.

Principle - cultural continuity
(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:
(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;
(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;
(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;
(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and
(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Best interests of Indigenous child
s. 10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration
(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child's connections to his or her culture.

Factors to be considered
(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including:
(a) the child's cultural, linguistic, religious and spiritual upbringing and heritage;
(b) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(c) the nature and strength of the child's relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;
(d) the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;
(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) any plans for the child's care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and
(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Consistency
(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

Attachment and emotional ties
s. 17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child's attachment and emotional ties to each such member of his or her family are to be promoted.

Law on Openness

[187] The caselaw on openness indicates the following principles:

• Openness is about providing connections for a child who is being adopted to his or her birth family and culture, while supporting the child's security in his or her adoptive family. This is a very different purpose than an access order. Native Child and Family Services of Toronto v. W.-H. (K.), 2007 ONCJ 169. Openness is not for the purpose of maintaining the original parent child relationship. B.R. v. K.R. and Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402.

• An openness order is not the equivalent of an access order under Part III of the CYFSA. There is no expectation that access will or must mirror anticipated openness provisions. The fact that access was granted after extended care does not mean that openness would be beneficial and meaningful after adoption. Children’s Aid Society of the Niagara Region v. S.S., supra.

• On an openness application, the court may consider whether any of the access terms attached to an extended care order would meet the test for openness or have proven to be unworkable. Access provisions attached to an extended care order may have provided an opportunity to "road test" potential terms for openness following adoption. Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109.

[188] The legislation is clear that it is important to consider openness for any child who is being placed for adoption and particularly a FNIM child.

[189] Under the CYFSA:

• A society is mandated to consider the benefits of openness for any child who is in extended care and subject to a plan for adoption.
• With respect to a FNIM child, the society is also mandated to consider an openness order between the child and a representative of the child's FNIM band or community.
• The openness provisions in the CYFSA should be interpreted in the spirit of the acknowledgments set out in the Preamble, including that indigenous children should be grounded in their cultures. Indigenous children's ongoing connection to family members, where in their best interests, should be seen as an important aspect of promoting and maintaining indigenous identity and connection.

[190] When considering openness, the Federal Act indicates for an indigenous child:

• Cultural continuity is essential to the well-being of a child.
• A child has the right to have his or her views and preferences considered in decisions that affect him or her.
• In the best interest test under s. 10 of the Act, a court must consider:
  • the primary consideration is the child's physical, emotional and psychological safety, security and well-being, as well as the importance for that child of having an ongoing relationship with his or her family and with the indigenous group, community or people to which he or she belongs and of preserving the child's connections to his or her culture.
  • The court must also consider the importance of preserving the child's cultural identity and connections to the language and territory of the indigenous group, community or people to which the child belongs.
• If the child cannot be placed with a member of his or her family, to the extent that doing so is consistent with the best interests of the child, the child's attachment and emotional ties to each such member of his or her family are to be promoted.

[191] The law with respect to openness has expanded over the past several years to recognize the importance of openness for children being adopted including:

• It can help build a child's identity and can assist a child to be more secure about where they have come from and a greater security moving forward.
• It helps the child understand their roots, heritage, culture and religion.
• A child may want to search out his or her birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.
• It can provide the child with readier access to medical information, which can be very important if genetic concerns develop.
• It can minimize grief and loss for children.
• Ongoing contact should be treated as a need for children, similar to a medical need.
• It allows children to maintain important connections to their culture and heritage, particularly if the adoptive home is of a different cultural background.
• It can place structure and expectations around contact to manage contact rather than having contact done secretly.

Importance of Preserving the Adoptive Placement

[192] Once a child is permanently removed from the care of the birth parent either through extended care and when even more importantly when they become part of a new family through adoption, preserving their placement is of primary importance and should not be undermined by contact with the birth parents.

Access Impairing a Child's Future Opportunities for Adoption

[193] Part of the test when considering an order for access to a child in extended care is whether the ordered access will impair the child's future opportunities for adoption.

[194] Courts outlined factors that will determine if contact with a birth parent may impair or interfere with adoption opportunities including:

• 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.
• 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.
• 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.
• 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.
• 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 as a result dissuade adoptive parents.

Openness Interfering with the Security of the Adoptive Placement

[195] The type of conduct by a birth parent that will impair adoption for an access order to be made to a child in extended care has also been considered in openness proceedings to find that such conduct will destabilize and jeopardize an adoptive placement so that openness is not in the child's best interests. In Catholic Children's Aid Society of Toronto v. S.K., 2016 ONCJ 242, Justice Curtis found that the birth mother's conduct of yelling at the adoptive parents, telling children things that will undermine their placement and that they are returning to their birth parents' care; posting plans on social media to continue to have contact with the children, and clearly not accepting the adoptive placement was found to not be in the children's best interests to order openness on a temporary basis.

[196] Adoption is for the purpose of ensuring that the adoptive parents successfully become the child's new adoptive family. The primary concern is the success of the adoption itself. What the caselaw indicates is that:

• In making an openness order, the court must consider whether openness would interfere with the success of the proposed adoption of the child. In such a contest, the interests of the biological parent requesting openness are secondary to the interests of the adoption succeeding.
• The integrity and emotional health of the adoptive family takes precedence over the interests of the birth parents seeking to maintain contact with a child.
• Any openness order must be structured to meet the interests of the permanency and success of the adoption and cannot be permitted to undercut the security of the child in his adoptive placement.

Analysis

Is an Openness Order in the Best Interests of the Children?

[197] Although the best interests tests under s. 74(3) for access, and s. 179(2) for openness are similar, the fact that the best interests of a child is considered in the context of openness with adoption as opposed to access to a child in extended care shifts the nature of the best interest of the child. As stated by Justice McDermott in B.R. v. K.R. and Simcoe Muskoka Child, Youth & Family Services, at paragraph 31:

"While an order for extended care is intended to provide for the protection and permanency of the arrangement for a child for the foreseeable future, adoption is for the purpose of ensure that the adoptive parents successfully become the child's new family. The primary concern is the success of the adoption itself. Therefore, in making an openness order, the court must consider whether openness would interfere with the success of the proposed adoption of the child. In such a contest, the interests of the biological parent requesting openness are secondary to the interests of the adoption succeeding."

[198] Considering the best interest factors in s. 179(2):

Views of the Children

[199] This is the first criteria listed under the best interest test and mandatory for the court to consider. It is a primary consideration in the best interest analysis under both the CYFSA and the Federal Act, and a protected right of the child by Article 12 of the Convention on the Rights of the Child. The first sentence in the preamble to the CYFSA indicates that:

"The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard".

[200] When considering openness, the court must give the child's view and wishes serious consideration. Where older children wish continuing contact with their birth parents, this has been ordered over the objections of the adoptive parents.

[201] The children are clear that they wish to have ongoing in-person visits with their parents, and do not want the frequency of the visits to decrease.

As Metis Children, the Importance of Preserving the Children's Culture

[202] Again, this is a mandatory criteria under the best interest test and at the forefront of the best interest analysis. This fundamental principle is reinforced both in the CYFSA and the Federal Act. In Children's Aid Society of the Niagara Region v. S.S., 2019 ONSC 4229, Justice Madsen accepted the expert evidence that "no access is a brutal way to treat indigenous children". While the court in this case is not dealing with access but openness, even when a child is placed for adoption with a family of a similar culture as these children are, continued connection to birth family who share that culture is likely to enhance a child's connection to the child's specific culture and history.

[203] As indicated, there has been reasonable efforts made by the Society and the OCL to determine the father's Metis community, without success. A continued connection with their birth family may be the only way that the children will ever have this connection.

[204] The Federal Act reinforces that the primary consideration in the best interest test is the child's physical, emotional and psychological safety, security and well-being, as well as the importance for a child to have an ongoing relationship with his family and indigenous community. These considerations must be balanced. So any connection the children have to their birth family must not undermine the security of their adoptive placement.

Other Relevant Considerations Under the Best Interest Test

The Needs of the Children and Level of Development

[205] These children have experienced trauma and multiple moves prior to their placement in their adoptive home. Both children have been assessed by a psychologist Dr. Ross and found to have multiple impairments across multiple areas of functioning.

[206] It is clear that the adoptive parents are meeting the special needs of these children. Many services are in place to assist the children with their challenges. According to the adoptive mother, the children have made significant improvements since they were placed in their care. The children want to remain with the adoptive parents and feel loved by them.

The Importance for the Child of a Positive Relationship with a Parent, a Secure Place as a Member of a Family, and the Importance of Continuity of the Child's Care and Effect of a Disruption of that Continuity

[207] The children have been in their present placement since March, 2021. It is a placement with their younger siblings which provides them with some cultural continuity. They have been through multiple moves in their young lives, and it would be devastating if this placement were to break down.

[208] In considering making an openness order the court must consider that adoption and permanency are in the best interests of the child. As such, an openness order that jeopardizes the success of the adoption is not in the child's best interest.

[209] Considering the best interest factors, their strong views and the importance of a connection to their Metis heritage, I find that some openness is in their best interests. However, any connection with their birth family post adoption must not risk a breakdown of this placement.

Will Openness Permit the Continuation of a Relationship that is Beneficial and Meaningful to the Children?

[210] The focus on "meaningful and beneficial" is from the perspective of the child. The meaningfulness of the relationship is not how meaningful it is to the parent but how meaningful it is to the child.

[211] In Re SM, Justice Katarynych stated that:

"A relationship "beneficial" to the child is one that confers benefit. It is a relationship that serves and promotes the good of the child, one that helps him, supports him, advances him through his adoptive life.
The only relationships that are to be preserved by openness orders are those shown to be "beneficial" and "meaningful" to the child. In essence, the requirement that the relationship be both beneficial and meaningful defines what is in the "best interests" of the child for the purpose of the openness order. A relationship that is not shown at the time of the hearing to be both "beneficial" and "meaningful" to the child is not, within this scheme, one that can be "continued" in an openness order."

[212] The law on what is beneficial and meaningful to the child means that more than love or a positive relationship is required. To be "beneficial" it must be advantageous to the child, and to be "meaningful" it must be significant to the child. The relationship must be both beneficial and meaningful. A relationship may be meaningful to a child but not beneficial.

[213] The test for access to a child in extended care under s. 105(6) emphasizes what is in the best interests of the child, and to consider if the relationship with the person seeking access is beneficial and meaningful to the child as part of the determination of what is in the child's best interests. The existence of a meaningful and beneficial relationship is no longer a prerequisite for access but forms part of the broader analysis of the best interests of the child. This is not the case for openness under s. 196(7) where the best interests of the child and if the relationship is beneficial and meaningful to the child are separate tests and both tests have to be met.

[214] Because the interests being protected in openness are entirely different from those considered in access post extended care, the fact that access was granted after an extended care order does not mean that openness would be beneficial and meaningful after adoption.

Meaningful Relationship

[215] The children clearly love their parents, know that their parents love them, enjoy their visits with them and would be sad if they no longer had contact with their parents. They are sad as they have not seen their parents since May, 2023. However, in response to a question from the OCL Mr. Deluca, they both expressed that they wanted to have another adult present for visits. Z.H. told his worker that he wanted another adult there as he did not feel safe as his dad gets mad. Despite this, I find that the relationship with the birth parents is meaningful to both children.

Beneficial Relationship

[216] Although the relationship may be meaningful to the children, there is question whether or not it is beneficial. This is due to the behaviour of the parents, specifically the father.

[217] Courts have found that a relationship is not beneficial to a child when the actions of the birth parent could undermine the adoption.

Concerns Related to the Birth Father

[218] The birth father clearly has suffered from his traumatic experience in the care of the Society and thus has a mistrust of and difficult relationship with the Society. As noted by Dr. Harris in her assessment from 2019:

The father has suffered trauma as a result his abuse in the society's care and then the removal of his children from his care. A concern related to the birth father's trauma history is his inability to self-regulate when his symptoms are triggered, generally as a result of negative interactions with the Society.

[219] The father exhibits all of the negative behaviours that the courts have found will impair or interfere with adoption opportunities for the court to deny access to a child in extended care including:

• A difficulty with aggression, anger or impulse control. The father is aggressive with society staff and legal counsel. He was convicted of uttering threats to cause death or bodily harm against the former Executive Director of the Society. He sends numerous threatening emails and voicemails to the Society, was criminally charged as a result, and is subject to a peace bond. At trial, the father defended his voicemails to the Society as appropriate as the Society "thinks it is appropriate to sell children".
• He calls the adoptive parents "conniving", "liars" and "kidnappers". He has sent aggressive and threatening messages to the adoptive parents on social media. He has picketed outside of the church of the adoptive parents, requiring police involvement resulting in further charges and resulting in another peace bond requiring no contact with the adoptive mother.
• Due to the aggression by the birth parents, the adoptive parents actually moved away from their community to a safer location.
• He has told the children during access visits that the adoptive parents are "kidnappers".
• He is clear that he will not stop making posts on social media against the society or the adoptive parents as the children are "his" and he needs to get his message out and until "justice is served". He would not promise that he would stop protesting.
• The father is litigious. He appealed the extended care order to the Ontario Court of Appeal.

[220] During the first trial, Dr. Harris expressed concerns that the relationship between the parents and the children was not beneficial as the parents could undermine the children's placement in the future, particularly given the birth father's trust issues with the Society. This is exactly what has occurred after the children were placed in the adoptive home in March, 2021.

Concerns Related to the Birth Mother

[221] Although the birth mother is more reasonable and cooperative than the birth father, there are still concerns with her behaviour, based on the following:

a) The birth mother does not accept that the children are being adopted, will have new parents and that she is no longer the parent. She was clear that she did nothing wrong to have her children taken away from her and they should have never been taken away. When asked if she accepted the adoptive parents are now the children's parents, she believes that as the children grow older they should be able to come home to her if they want to.

b) The birth mother has made comments on social media against the adoptive parents that they are "kidnappers", "liars" who have "stolen their kids". However, the birth mother denies making these statements in front of the children and just reinforced to the children and she is their mother, and they are the foster parents.

c) The birth mother has also sent threatening emails to the society workers, although not to the extent that the birth father has. The birth father's voice can be heard during the birth mother's voicemail messages to the Society encouraging her.

d) The birth mother made an inappropriate comment to Z.H. during their last telephone call when she asked him "are you hurting".

e) There are significant concerns that the birth mother cannot control the birth father.

• At this trial, the birth mother indicated that she understands why the Society and the court would have concerns with the birth father's behaviours.
• The birth mother acknowledged that the birth father had been doing 90% of the messaging on her Facebook account. When asked if she could kick him off her Facebook, she indicated that he changed the password and does not remember it to be able for her to change it back. She also does not want to lose her Facebook account as she has pictures of the children on the account that she wants to keep. She told the birth father to get his own Facebook account, but he "chose not to". The birth mother understood that her Facebook account was public and the children could see what the father has posted. She acknowledged that the children did not need to see this, but still the father uses her account.
• The birth mother acknowledges that the father requested that she leave messages for the Society, such as wanting her "property restored". She acknowledges being present during some of the birth father's phone calls to the Society and participating in some of the phone messages.
• The birth mother acknowledged that during the ODR process, although being told that she had to be alone in the meeting with the adoptive mother, she could not stop the birth father from being there.
• The birth mother was threatened by the birth father to attend at the church in November, 2023, to protest and she could not stop him from attending.
• She acknowledges that despite her pleas to the father not to be aggressive against the Society or the adoptive parents he does not care, and it is putting pressure on her and the children. She stated at trial that the birth father "does not listen to me, does not listen to Ms. Tuer and will not even listen to Justice Neill".

[222] When asked what she would do if the birth father wanted to attend her visits with the children, the birth mother stated that if the visits were in Stratford, the birth father could not attend anyway due to the peace bond. However, this is only in effect until May, 2025. They would have to travel from Huntsville to Stratford, so the father would have to stay with a friend while she visited with the children. If the father decided to attend the visit with her, she would report that and cancel the visit. There was no option for the birth mother that she would come to Stratford alone or tell the father he could not attend.

[223] The birth mother does not believe it is right to put her in the middle of disputes between the birth father and the Society and police. However, this was the same situation she was in during the extended care trial in March, 2020. In the trial decision of May 25, 2020, I found that the father's controlling behaviour towards the mother had a negative impact on the children. The mother acknowledged that at that time she had not been able to protect the children from the influence the father had over her.

[224] During this present trial, the birth mother acknowledged that she was advised many times that it would benefit her if she separated from the birth father. However, she agreed that they are still a couple. It was difficult to hear the birth mother explain that she could not separate from the birth father as it would be challenging for her financially and he threatens her. However, the birth mother had not even approached a women's shelter to ask for assistance. She indicated that she had a "plan of action", but it would take a lot of "push and shove" for her to do it.

[225] As Dr. Harris stated in her assessment from September, 2019, the birth mother is:

"a kind and resilient woman.. a compassionate person caught in a pattern of placating the birth father. Her passivity undermines her ability to avail herself of needed resources to the detriment of her children and herself".

[226] The birth father will definitely not support these children in their adoptive placement. Even if the birth mother could do so, there are serious concerns that she could not control the negative influences from the birth father.

[227] There are serious concerns that the relationship with the birth parents is not beneficial to the children.

[228] However, it is not the actual contact with the parents that may be beneficial to the children but having a connection to their culture through the birth parents. Under the CYFSA, the court is mandated to consider openness to connect an indigenous child to his culture. It is a fundamental requirement for indigenous children under the Federal Act to have cultural continuity and to preserve their cultural identity. Although the adoptive father is Metis, he may not be from the Metis community that the birth father is from. Having some connection to the birth parents may be the only connection that these children have to their specific indigenous community, and why some connection with the birth parents is beneficial for the children.

Ability to Comply with the Openness Order

[229] In determining openness, the court is required to take into account the ability of the proposed adoptive family to comply with an openness order. The caselaw emphasizes that:

• While the wishes of the adoptive parent is not determinative, they need to be given great consideration.
• Deference must be given to the views of the prospective adoptive parents, as openness must be concerned with the success of the adoption and the comfort level of the adoptive parents with the proposed contact with the birth parents.

[230] The adoptive mother testified that she has significant concerns about the safety of her family should there be in-person visits with the birth parents and that they will discover where they live. The adoptive parents have had to move from their community due to these concerns. They have obtained police protection and there is presently a peace bond against the father prohibiting contact with the adoptive mother.

[231] Even in a supervised setting, the birth parents were able to say inappropriate things to the children. There could be safety issues even doing exchanges for in-person visits. When visits occurred at the agency, the adoptive parents were not involved at all except for one visit. The adoptive parents would have to be involved in some way in openness post-adoption.

[232] The adoptive mother is also concerned about the impact of in-person visits in the children's behaviours. She testified that the children's negative behaviours increased after contact with the birth parents. However, the society worker indicated that the children's behaviours have been destructive throughout their time in care but have improved somewhat. It is not clear that the children's behaviours have significantly improved now that they are no longer having contact with their parents.

[233] In general, T.H. and Z.H.'s contact with their birth parents causes stress and anxiety for the adoptive parents and could dysregulate their entire household.

[234] Even if visits are just with birth mother alone, the adoptive mother has concerns that the birth mother is complicit and supports what the birth father is doing, which is supported by the evidence at trial. Although the adoptive mother's belief about the birth mother's involvement in the incident on November 10, 2023 was inaccurate, she still has valid concerns about the birth mother's inability to control the birth father.

[235] Several other options for contact were proposed to the adoptive mother at trial. The adoptive mother believes that even video calls would be problematic as the birth parents are very impulsive and they could not shield the children from the birth parents saying something inappropriate and damaging. The adoptive mother would be put in a challenging position of having to end the call if something inappropriate was said. The adoptive mother was concerned with the birth mother even attending visits with aunt Michelle due to her inability to follow the rules.

[236] In cross-examination, the adoptive mother confirmed her belief that any contact between the children and the birth parents would be horrible for the children. Although the society workers indicated that the visits between the children and birth parents were positive, she disagreed due to what T.H. told her after visits; being that he did not like his birth parents speaking negatively about the adoptive parents. Her concern was that the society workers did not supervise closely enough to stop these types of conversations.

[237] The adoptive mother indicates that the two younger children, who have no contact with the birth parents, do not understand that T.H. and Z.H. were visiting with the birth parents and they do not understand this relationship. This could change as the children grow older if in-person visits continued.

[238] The adoptive mother would agree to openness by offering the birth parents updates about the children once a year on her terms, but this is all that she could safely offer.

[239] The adoptive mother did not believe that terms in an openness order that the birth parents not communicate with the adoptive parents or attend at their home would be effective as they had already breached a peace bond from May, 2024. She did not believe there could be terms put in the openness order that would make her feel safer. She acknowledged that the birth parents' negative behaviour towards them and the Society will not stop regardless of whether or not there is an openness order, even with a restraining order in place.

[240] The OCL, Mr. Deluca agreed that the fears of the adoptive mother regarding the birth parents were reasonable.

[241] The adoptive mother was emotional when she indicated that she will always continue to offer a placement for the children. Her heart has always been with the children and she wants to keep them together. She loves the children, and this will never change. She does not stop, even when it is difficult. The adoptive mother understood that once the children were older, they may reach out to their birth parents on their own through social media. However, she wants to protect them from such contact at this time. She understood that when they are adults, the children may choose to see their birth parents.

[242] In the end, if an openness order is made, the adoptive mother indicated that she will try to abide by the terms of the order. If she had to return to court to vary or terminate the openness order, this would be a financial and emotional strain on them.

Conclusion on Openness

[243] The court's primary and only concern in these cases is the children's best interests which requires the court to ensure and protect the viability of the children's placement. The court must achieve a balance between the strong views of the children for continuing contact with their birth parents and their need for connection with their culture, with the risk that openness will have to the security of the children's placement, which must take priority.

[244] I agree with the Society's submissions that the philosophy of openness is that the birth and adoptive parents will work cooperatively to ensure that the children are able to maintain a connection to their birth family in a healthy way. This is what openness is meant to be. Openness really should never require such an intrusive order as proposed by the OCL.

[245] I am cognizant that courts have made openness orders despite the disruptive and inappropriate behaviours of the parents. It was argued by the OCL and agreed by the Society that if there is no openness at all, the father's behaviours could escalate. The birth mother agreed that the birth father escalates when he does not have a connection with the children.

[246] Considering all of the evidence, I find that some openness is in the best interests of the children. This is even agreed to by the adoptive parents and the Society in the form of sending updates to the parents. The relationship with the birth parents is meaningful to the children. However, it is only beneficial to them because it is their main link to their specific Metis community. This is of critical importance having regard to both the Federal Act and the CYFSA.

Form of the Openness Order

[247] An openness order does not necessarily mean that there will be direct and exclusive contact between the person who previously enjoyed access and the child. The court may order indirect contact, by means of pictures and letters. The court may allow occasional direct contact on special occasions between the child's former family and the child's new family. The court may leave the particulars of contact in the discretion of the adoptive parents.

[248] The court should carefully evaluate the nature and history of the relationship between the adoptive parents and the birth parents when considering the form of the order. The order must not place undue stress on the adoptive parents or the child. The court should be mindful that once the adoption is final, the Society will no longer be involved as a buffer. It is at the discretion of the Society how much post-adoption support they can offer this family. The reality is that the adoptive family may have to manage the behaviours of the birth parents on their own.

[249] If anything, the openness would have to be supervised. As found by Justice Zisman in Catholic Children's Aid Society of Toronto v. A.P., 2019 ONCJ 631 when considering what contact would look like post-adoption where contact had to be supervised, there was no evidence whether a supervised access centre would be amenable to providing limited yearly visits or the details of setting up those visits, scheduling, and paying for the visits. Justice Zisman found that the court should be provided with some preliminary evidence of how such contact would be arranged once the Society was no longer involved, which was not provided in this case. The onus is on the applicant for openness to present a viable plan for in-person openness as they are advocating for, which has not been presented.

[250] The terms of the final access order from May 25, 2020 and the "road testing" since then have demonstrated that in-person contact is not workable. It is clearly not in the children's best interests or beneficial for the children to have in-person visits with the birth father. Although the court considered in-person visits with just the birth mother, the evidence indicates that for years, even well before the extended care order was made, that the birth mother cannot control the actions of the birth father. Even though he testified that if in-person visits were only with the birth mother, he would not be involved, this is seriously questionable. In-person visits will destabilize the adoptive placement, which must be safeguarded.

[251] Dr. Harris indicated that most children benefit from knowing their roots and will seek out information about their biological family at some point in their lives. However, there are many ways to provide this information in a developmentally sensitive manner throughout a child's life including through letters, pictures, a life book, and ongoing sibling access.

[252] The court must also consider the impact of an openness order on other siblings in the adoptive home. If openness results in a breakdown of a placement for T.H. and Z.H., this could also result in a separation of them from their younger siblings.

[253] The main goal in openness in this case is to continue to connect the children to their Metis culture. They will have contact with Aunt Michelle on a voluntary basis. The adoptive parents are willing to share information annually with the birth parents, but this does not connect the children to their culture through the birth parents. This can be achieved by some limited contact by the birth parents to the children through cards, letters and videos.

[254] I note that once an openness order is made, the birth parents would not have a right to apply to vary the openness order before the adoption order is made and would require leave of the court to vary the openness order after the adoption is made. This provides extra safeguards to the adoptive parents.

[255] It is unfortunate, but some of the protective terms suggested by the OCL may need to be included in this openness order to help ensure the safety of the adoptive home.

[256] Although the court cannot force the Society to be involved in openness without their consent, it is hoped that the Society can work with the adoptive parents to set up a process whereby the birth parents can send information to and receive information about the children in a safe manner.

[257] Therefore, there will be the following Final Order:

1. The children, T.H. born […], 2014 and Z.H. born […], 2015 ("the children") shall have openness with their biological parents as follows:

   (a) The caregivers for the children shall provide updates to the birth parents regarding the children on an annual basis in or about December of each year commencing in 2025, including their education, extra-curricular activities, pictures and general well-being. These updates will be provided in a manner that will not disclose the whereabouts of the caregivers or the children and may be provided by letter or email.

   (b) Both parents separately may send a video message, letters or cards to the children on an annual basis. The mother may send her message in or about July commencing in July, 2025 and the father may send his message in or about December commencing in December, 2025. These messages must be appropriate, child focused and not contain any derogatory or threatening language regarding the caregivers or the Society or language used for the intent to destabilize the children's placement. The court encourages the parents to provide information about their Metis culture to the children.

   (c) The caregivers may review the parents' messages to the children prior to providing them to the children and need not provide them to the children if they are inappropriate.

   (d) The specifics of how information is to be exchanged between the caregivers and the birth parents shall be at the discretion of the caregivers, and with the assistance of the Society only if the Society consents to assist.

2. The biological parents:

   (a) Neither shall attend any place they know the children or adoptive parents to attend, live, go to school, go to church, or work, or within 200 meters of any such location.

   (b) Neither shall make negative comments about the adoptive parents publicly or on social media. They shall refrain from calling the adoptive parents names on social media or any public forum.

   (c) Neither shall communicate with the adoptive parents directly or indirectly, except in accordance with this Order.

ON CONSENT:

3. The children, T. and Z. shall have a minimum of four (4) face-to-face visits with one another each year, in the event they are not residing together, on the following terms:

   (a) The dates of the visits shall be arranged directly between the caregivers of the children.

   (b) The children's caregivers shall attempt to arrange visits around significant holidays, birthdays, and other cultural or important celebrations within families.

   (c) The duration of the visits shall be a minimum of three (3) hours each.

   (d) Both T. and Z.'s caregivers shall be present at the visits between the children.

   (e) The visits shall take place at a location as agreed upon by the children's caregivers.

   (f) The children's caregivers shall communicate by email or text message to arrange visits, unless otherwise agreed. Each of the children's caregivers shall forthwith provide one another with contact information for that purpose and shall ensure they keep the other up to date with current contact information.

   (g) Transportation to visits for the children shall be provided by their respective caregivers.

   (h) The children may communicate by Skype, Zoom, Facetime, telephone call, text message, social media or other applicable technology, taking into account the needs, ages, and wishes of the children. Such communication shall be arranged by the caregivers of the children, at the discretion of the caregivers.

Released: February 21, 2025