WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

(c)

prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . the publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult.— 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.

85.—(3) Idem.— A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Ottawa Court File No.: 01-DV-663 Date: 2003·II·26 Superior Court of Justice The Divisional Court

Between: H.A. and D.F., Applicants/Respondents at appeal,

— AND —

Children’s Aid Society of Ottawa, Respondent/Appellant.

Before: Justices Richard J. Flinn, Ellen M. MacDonald and G. Patrick Smith Heard on: 14 November 2002 Reasons for Judgment released on: 26 February 2003[^1]

Headnote

CHILD PROTECTION — Form of order — Ancillary order — Access — Variation — Procedure — Whether request to vary access simpliciter must be made via status review — Four years ago, court made boy (now almost 15 years old) Crown ward to whom parents had access at discretion of children’s aid society — Society reduced access time because of unpleasant incident between parents and foster parents — Mother thereupon made motion for defined, increased access to boy under section 58 [access] of Child and Family Services Act — Society objected, saying that mother had to make her request via status review under subsection 64(4) and, because boy had lived with same foster family continuously for more than 2 years at time of her motion, she first had to get court’s permission under subsection 64(5) to seek status review — Motion judge disagreed, ruling that section 58 was “stand-alone” provision whenever access was sole issue — Society appealed to Divisional Court, which agreed with motion judge — Divisional Court noted that subsection 59(2) implied, with its reference to both sections 58 and 65, that parent could apply for access to Crown ward without having to go through status review — Fact that ward had lived with same foster parents continuously for more than 2 preceding years was just another factor for court to consider — Society’s appeal dismissed — Party who sought merely to vary access order to long-term Crown ward could apply directly under section 58 and did not need to embark upon status review.

STATUTES AND REGULATIONS CITED

Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], section 58, section 59, subsection 59(2), section 64, subsection 64(5), section 65 and subsection 140(1).

Counsel: George A. MacPherson ...................................................... counsel for the respondent mother, H.A. Tracy L. Engelking ........................................................................ counsel for the appellant society Jennifer A. Moore ............................................................... counsel for the respondent father, D.F. Nigel E. Macleod .................................................... counsel for the Office of the Children’s Lawyer, legal representative for the child, T.F.

For previous proceedings, see:

permission granted to appeal ruling on proper route for mother’s motion for increased access to long-term Crown ward: H.A. v. Children’s Aid Society of Ottawa and D.F., 109 A.C.W.S. (3d) 921, [2001] O.T.C. 862, [2001] O.J. No. 4584, 2001 CarswellOnt 4168 (Ont. Fam. Ct.), per Justice Jennifer A. Blishen; and

mother’s motion for increased access dismissed: H.A. v. Children’s Aid Society of Ottawa and D.F., [2002] O.J. No. 1081, 2002 CarswellOnt 9005 (Ont. Fam. Ct.), per Justice Maria T. Linhares de Sousa.

Reasons for Judgment

[1] JUSTICE R.J. FLINN:— This is an appeal from the order of Justice V. Jennifer Mackinnon of the Superior Court of Justice made on 22 June 2001 in which the learned justice concluded that an application for access to a child who was a Crown ward pursuant to the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, did not trigger an application under section 64 or 65 of the same statute for status review as insisted upon by the appellant.

[2] The facts briefly are that the child T.F. was made a ward of the Crown on 3 February 1999 with access to his biological parents, Ms. H.H.A. and Mr. D.F. The mother, Ms. H.H.A., moved the court to increase her access to T.F. who, at that time, had lived with the same foster parent since November of 1997. Counsel was appointed for the child and, on the return of the motion, the appellant took the view that the mother was required to prepare a “status review application” and to obtain leave of the court to file that application pursuant to subsection 64(5) of the statute as T.F. had lived with the same foster parents continuously during the two years immediately before the application. The motion was adjourned and in accordance with the request of the appellant, the mother filed a notice of motion requesting leave of the court to file a status review application. This came before Justice Mackinnon who made the decision appealed from. Leave to appeal was granted by Justice Jennifer A. Blishen on 12 October 2001 and the matter comes to the Divisional Court as an appeal from an interlocutory order of a judge of the Superior Court.

[3] The appellant’s argument is that, because T.F.’s right to access to his parents was part of his legal status as a Crown ward with access, it was necessary to examine his status as a “Crown ward with access.”

[4] Counsel further argued that a motion for increased access would interfere with the duty of the society under subsection 140(1) to make all reasonable efforts to secure the adoption of the child and further that, in as much as it would be necessary to serve a motion for increased access on the child, such would cause him emotional harm.

[5] The fact is that the matter of access had been settled between the parties before the motion came before the Divisional Court. Parties, save counsel for the child, argued that the matter was of some importance particularly in the Ottawa area as the view of the children’s aid society with respect to access and status review was causing difficulty. Accordingly, the court determined that it would hear the matter.

[6] Section 58 of the Child and Family Services Act deals with applications for access. It reads in part as follows:

58. Access order.—(1) The court may, in the child’s best interests,

(a)

when making an order under this Part; or

(b)

upon an application under subsection (2)

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

(2) Who may apply.— Where a child is in a society’s care and custody or supervision,

(a)

the child;

(b)

any other person, including, where the child is an Indian or a native person, a representation chosen by the child’s band or native community; or

(c)

the society,

may apply to the court at any time for an order under subsection (1).

[7] This court takes the view that, as stated by Justice Mackinnon, section 58 provides a “stand alone” route with respect to access when that is the only issue. The legislation has specifically set out in section 58 and section 59 the procedure with respect to access. These sections contain safeguards to protect the best interests of the child with particular directions to the court. Subsection 59(2) reads as follows:

(2) Access: Crown ward.— The court shall not make or vary an access order with respect to a Crown ward under section 58 (access) or section 65 (status review) unless the court is satisfied that,

(a)

the relationship between the person and the child is beneficial and meaningful to the child; and

(b)

the ordered access will not impair the child’s future opportunities for a permanent or stable placement.

[8] It appears implicit in subsection 59(2) with reference to both sections 58 and 65 that one can apply for access without having to go through status review. The fact that the child has lived with the same foster parents continuously during the two years preceding is, in the court’s view, another factor to be considered in connection with access.

[9] Accordingly, the court finds that it is not necessary when attempting to vary the access with respect to a Crown ward that was directed in the Crown wardship order to review the status of the child even if after the child has been with the same foster parents for two years preceding the application.

[10] Accordingly the appeal is dismissed and in all of the circumstances there will be no order with respect to costs.

[11] JUSTICE E.M. MacDONALD:— I agree.

[12] JUSTICE G.P. SMITH:— I agree.

[^1]: On 21 March 2003, about 3 weeks after it released its reasons, the court released an amended text without revealing the extent of the changes. It is this corrected text that is set out here.