ONTARIO
SUPERIOR COURT OF JUSTICE
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows:
-(8) 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.
-(3) 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 NO.: 3848/11
DATE: 2012-03-22
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Tracy Pybus, for the Applicant(Respondent in this Appeal)
Applicant (Respondent in this Appeal)
- and – M.B.1
Richard H. Barch Q.C., for the Respondent (Appellant in this Appeal)
Respondent (Appellant in this Appeal)
Erik Grinbergs, for the Office of the Children’s Lawyer
HEARD: March 21, 2012
The Honourable Mr. Justice B.H. Matheson
ENDORSEMENT
[ 1 ] This was a motion brought by M.B.1 to allow the filing of several affidavits as fresh evidence. They were the affidavits of M.B.1 and K.P.. The filing of the affidavits was not opposed by the Society.
[ 2 ] The main thrust of the motion was to allow the Respondent to have access to her daughter.
[ 3 ] The daughter, A.B., was born on […], 2000. Her mother is the Respondent in this hearing. Her natural father is M.B.2. Mr. M.B.2’s whereabouts are not known.
[ 4 ] Justice J. P. Nevins of the Ontario Court of Justice, Family Division, made a judgment delivered orally on September 22, 2011. He made an order for Crown wardship of A.B.. He was aware of the change of legislation concerning access after an order of Crown wardship had been made. He made it clear that he was attempting to have the mother appreciate that the visitation rights were going to be narrowly dealt with. He stated, “… I can’t think of a better word than terminating meetings - good-bye access visits. One or two, or however many is, is, may be appropriate for this little girl to deal with the fact that she may be going to be placed for adoption.”
[ 5 ] The last visit that M.B.1 had with her daughter was on October 14, 2011. It was supervised.
[ 6 ] Ms. M.B.1 started her appeal of the decision of Justice Nevins on December 5, 2011.
[ 7 ] The appeal will be heard on April 13, 2012. It will deal with the question of continued access by Ms. M.B.1.
[ 8 ] The motion before me is for access by Ms. M.B.1 to her daughter before the hearing on the 13 th of April.
[ 9 ] This motion was started on the 8 th of March 2012. As stated, it was heard by me on March 21 st .
[ 10 ] In the Affidavit of Jenny Athanasiou, who is employed by the Office of the Children’s Lawyer, dated February 19, 2012, she states the following:
When asked to describe her mother, A.B.’ eyes were teary and she stated that her mother is “awesome”. A.B. shared that her mother would stick up for her and speak sternly to anyone who would bother A.B.. …
I explored with A.B. what it meant to be a Crown Ward. A.B. shared that it meant that she could not see her family ever again.
A.B. stated that if she could tell the judge what she thought, she would tell him she felt he was “stupid” because he decided that she could not see her mother.
A.B. stated that she enjoyed the visits she had with her mother and the FACS worker, Diane. They would ride bikes to the pool, go to Wal-Mart and bake. A.B. shared that she would like to see her mother 3 times per week, supervised, in the home for an hour and a half. When asked why “supervised” she said that FACS would probably not agree to unsupervised.
Supervised access at a minimum of 3 times a year between A.B. and her mother M.B.1 would be meaningful and beneficial to A.B.’ well being.
…A.B. seems to be a child who wants to please others. Some of her desire to maintain contact with her mother may come from wanting to please her mother, but her affect and her genuine emotional state when speaking about this relationship indicates that she needs this for herself as well. The removal of all contact with her mother is likely to cause further emotional distress to A.B..
It is the position of the OCL that access by M.B.1 is both meaningful and beneficial to A.B..
The OCL would support an Order that grants supervised access at a minimum of 3 times a year between A.B. and her mother M.B.1.
[ 11 ] I heard this motion about three weeks before the appeal is to be heard. There was a period of non-access from October 14, 2011 until the present by the mother.
[ 12 ] Section 59(2.1) deals with the question of access when a child has been made a Crown ward. It reads as follows:
A court shall not make or vary an access order made under section 58 with respect to a Crown ward 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 adoption.
[ 13 ] The Divisional Court commented on this section in Children’s Aid Society of the Niagara Region v J.C. (2007), 2007 8919 (ON SCDC) , O.J. No. 1058 , at paragraph 29 :
“Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant” (Children’s Aid Society of Niagara Region v. J.(M.) (2004) 2004 2667 (ON SC) , 4 R.F.L. (6 th ) 245 , 2004 Carswell 2800 , at para.45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s.59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children’s emotional health, were identified.
[ 14 ] Justice J.W. Quinn dealt with the same issue in Children’s Aid Society of the Niagara Region v. M.J. , K.S. and S.S. (2004), 2004 2667 (ON SC) , O.J. No. 2872 at paras. 45 through 47. They read as follows:
45 What is “a beneficial and meaningful” relation in clause 59(2)(a) ? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.
46 I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.
47 Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.
[ 15 ] Mr. Grinsbergs stated that the position of the Office of the Children’s Lawyer may have been different if the application for access had been made much earlier, not four and a half months after the original order and three weeks before the appeal.
[ 16 ] I agree.
[ 17 ] There were very good arguments on both sides of this issue. We are dealing with the welfare of an eleven year old. To make a decision that may be reversed three weeks later is very risky, in my opinion, for the welfare of the child and her mother.
[ 18 ] Therefore, I am not going to vary the order of Justice Nevins and will leave it up to the Appeal Justice.
Matheson, J.
Released: March 22, 2012
COURT FILE NO.: 3848/11
DATE: 2012-03-22
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: The Children’s Aid Society of the Niagara Region Applicant (Respondent in this Appeal) - and – M.B.1 Respondent (Appellant in this Appeal) ENDORSEMENT Matheson, J.
Released: March 22, 2012