BARRIE COURT FILE NO.: FC-08-65-01

DATE: 20121127

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L.M., Applicant

AND:
CHILDREN’S AID SOCIETY OF COUNTY OF SIMCOE, Respondent

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
M. Prost, Counsel, for the Applicant

M. Sirdevan, Counsel, for the Respondent

HEARD: November 19-21, 2012

ENDORSEMENT

[ 1 ] Notice of Termination of Access between the Applicant Mother and her son M., dated October 3, 2011, was served on L.M. in February 2012 when she succeeded in making contact with M.A.D., the current case worker.

[ 2 ] She had missed the first Family Group Decision Making meeting (FDGM) by then and declined to attend the second as she understood it was only to discuss adoption. At the first FDGM about 40 family members attended and the Children's Aid Society of Simcoe County (the Society) attempted to determine whether there was a family member who could consider adopting M.. His father R. was there. The great grandmother A. and L.M.’s estranged father were there. None could tell the Children's Aid Society of Simcoe County where to find L.M. None had an adoption plan to put forward.

[ 3 ] Eventually the father provided information that located L.M. The Society worker had earlier inquired about asking counsel of record whether he knew where L.M. could be located but had no response from their legal department so did not do so.

[ 4 ] M. was born […], 2006. L.M. and M. soon lived with paternal aunt L.S.as she described L.M. was very young – 17 going on 12 – and required quite a bit of help with M. M. was placed in the care of great grandmother A. in April 2008. He has been in the care of the Society since July 2009. He had been made a crown ward with access on March 19, 2010 with L.M.’s consent given because she recognized that she was not in a position to address his special needs but desiring always to offer him he love and the benefit of the visits that were enjoyed by both.

[ 5 ] The crown wardship order also provided:

4. Access by the parents and grandparents shall be as arranged with the Society. The Society shall have the discretion as to the location, frequency, duration and requirement for supervision of such access.

[ 6 ] That there was an access order with crown wardship assumes that the criteria in s.58 and particularly s.59(2.1) were met [1] such that the relationship between L.M. and M. was, at that time, beneficial and meaningful.

[ 7 ] Much evidence was received about how L.M. exercised access both before and after the March 19, 2010 crown wardship order.

[ 8 ] At the time of the crown wardship with access order the Society considered M. un-adoptable so great were his diagnosed needs. However, since then he has made significant progress with his autism and global developmental delays such that the Society now believes they will be able to find an appropriate adoptive home. So far no suitable match has been found.

[ 9 ] Counsel for the Applicant Mother reminds the court that adoption is not always a panacea and that many break down. He cites cases in which access with a birth parent was sufficient reason to keep a child in long term foster care [2] and an enhanced burden before severing parental relationship. He invokes s. 7 Charter sensibilities by reference to New Brunswick (Minister of Health & Community Services) v. G. (J.) [3] SCC

76. The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.

77. In light of these factors, I find that the appellant needed to be represented by counsel for there to have been a fair determination of the children’s best interests. Without the benefit of counsel, die appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’ best interests and thereby threatening to violate both the appellant’s and her children’s s. 7 right to security of the person. I say this despite the motions judge’s finding to the contrary.

[ 10 ] I agree that severing a parent child tie is a profound matter.

[ 11 ] Upon learning that her access had been terminated by the Society, L.M. applied March 2, 2012 under Child and Family Services Act s 145.1.2(6) for an openness order with the purpose of resuming access.

[ 12 ] On an interim motion heard by Wood J. on July 24, 2012, temporary access was denied.

[ 13 ] At trial L.M.’s plan is to resume access with M. while he remains in the same foster home where he has made considerable progress, where the foster mother is prepared to care for M. indefinitely but cannot afford to adopt him because of his need for extensive and expensive resources and where the relationship between L.M. and the foster mother has been cooperative.

[ 14 ] This plan is not an openness order but the Application makes some sense. Since L.M.’s primary purpose was to resume access after notice of termination, it gave her occasion to have the issue of access considered by a court. A resumption of access was not achieved at the interim motion but could be considered by me as trial judge for the purpose of laying the groundwork for demonstrating the sort of relationship that could give rise to an openness order. In other words I did not, on some strict procedural basis, prevent the Applicant Mother from calling evidence or making full argument about her proposed plan.

[ 15 ] Recognizing that case law suggests an openness order should only be considered after “road testing” the arrangement, L.M. seeks , if the Children's Aid Society of Simcoe County does move toward adoption placement, to have demonstrated during a period of resumed access after trial, that she has a relationship with M. that is beneficial and meaningful. Then an openness plan could be “road-tested”. This trial is really only a preliminary step to lay the groundwork for an openness order if and when the Society finds a suitable adoptive home.

[ 16 ] Facts in issue in the evidence before me included the length of time since the mother and son had contact, whether the relationship was beneficial and meaningful such that it should be continued in M.’s best interest and whether the Society has proceeded towards adoption without considering the relationship available with the mother in the context of a crown wardship with access order.

[ 17 ] The Application is governed by legislation recent enough to have had little case law to consider. Essential reading however is the eloquent and scholarly commentary by Katarynych J. of the OCJ, a published judge with long experience in Child Protection whose insight and methodical precision in Re Proposed Openness Order for S.M. [4] provides a firm foundation for further jurisprudence on the subject. She discusses general principle at such length before addressing the particular facts of the case before her, that the distinguishable circumstances of case do not limit the usefulness of her comments. The distinguishable facts serve to contrast the circumstances in the present case which is, in itself, useful.

[ 18 ] Katarynych J. reviewed the legislation [i] [ii] [iii] and scheme of the amendments to permit openness orders.

[ 19 ] She identified the purpose of the amendments:

8 The order has specific purposes. It is made ( her emphasis added ):

... for the purposes of facilitating communication or maintaining a relationship between the child and a birth parent, birth sibling or birth relative of the child; 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 [ applicable to Indian and native children ].

See the definition of "openness order" in subsection 136(1) of the Act.

[ 20 ] She identified the criteria in 145.1(3):

11 The substantive criteria for the order are strict. The Act requires the applicant to satisfy the court (my own emphasis added):

the openness order is in the best interests of the [Crown ward] ;

the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child ;

and

the following entities and persons have consented to the order:

the society, the person who will be permitted to communicate with or have a relationship with the child if the order is made, the person with whom the society has placed or plans to place the child for adoption, and the child if he or she is 12 years of age or older.

[ 21 ] Inasmuch as the first criteria is best interests, she hastened to place that familiar imperative into context:

13 The court takes its "best interests" findings to the more particularized scrutiny required by the openness scheme: that the relationship be shown to be beneficial and meaningful to the child. The court cannot skip this latter step. On my read of this scheme, it is risky to assume that a relationship shown to be in the child's overall "best interests" must, as a matter of common sense, be beneficial and meaningful to the child, for reasons set out more fully in the course of these reasons.

[ 22 ] To address the second criteria that “the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child” she then considers what it is in the relationship that is to be continued, recognizing that neither the “parenting” nor the legal relationship will continue as those are entrusted to the adoptive parents:

17. What then in the relationship is left? It is the child's emotional tie to that significant parent. Even then, eyes must be wide open to what portion of that emotional tie can reasonably go forward into adoption. The child cannot be left straddling his "old" and the "new" life in a manner that disinclines him to root himself in his adoptive life.

Is it an occasional contact that is the stuff of an openness order? That cannot be the intention. To keep "relationship" alive requires more than an occasional "contact". As a matter of human experience, occasional contact for a child is not something that "continues" relationship in any meaningful sense of that concept. Contact too infrequent over too long a period of time between a child and his significant person is the stuff that withers "relationship". That withering and fear of withering of relationship is an all too familiar reality in the work of both the Ontario Court of Justice and the Family Court.

[ 23 ] Then she considers the conjunctive requirements of “beneficial and meaningful” as they define best interests in this context and notes:

Even though a true measure of benefit or meaningfulness of a relationship to a child may require the unfolding of time, the adjudication cannot be rooted in an anticipation or eventuality. If the present benefit and present meaningfulness are not evident at the time of the hearing, there is no discretion to make an order that gives opportunity for future benefit or future meaningfulness to the child.

[ 24 ] Specific to our circumstances, Katarynych J. predicts how this assessment of whether a relationship is beneficial and meaningful may look:

That silence on temporary orders at the front end may be deliberate. The children's aid society retains all its rights and responsibilities in relation to the Crown ward throughout adoption probation.

The road-testing discretion rests with the society. Under the amended Part III of the Act, the society is given discretion to permit contact or communication between any person and the Crown ward, if the society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward. See subsection 59(4) of the Act. The only bar to exercise of that discretion is an access order in effect for that Crown ward that meets the specific criteria for such orders under the amended law governing access to Crown wards.

The court's discretion rests essentially in its ability to control its own process; specifically by ensuring that any openness application, once filed, does not come on for hearing until the road-testing has been accomplished and the results of it made part of the evidence in that hearing.

[ 25 ] In the present case there is a crown wardship with access order but the precise term leaves discretion as to “location, frequency, duration and requirement for supervision” with the Children's Aid Society. At the outset of crown wardship the Society believed that access between L.M. and the un-adoptable M. was in his best interests but they have come to believe it is not. Their decision to serve a Notice of Termination of Access grew from their altered view of M.’s adoptability and their view of the declining benefit and meaningfulness of access based on a length of time when no access occurred. That the hiatus in access formed a significant component in their assessment is the contrast with the consistent visits with great grandmother A. which relationship they continue to support.

[ 26 ] The effect of their exercise of decision was, in the language of Katarynych J., was to put the “road test” of to a halt even before prospective adoptive parents have been identified. The Society served Notice of Termination of access as a first step to their exploration of adoption possibilities

[ 27 ] This crystallized the issue for me to determine, from the Respondent Society’s point of view: whether, when they served Notice of Termination, there was relationship that should be assessed with a view to “road testing” an openness proposal with prospective adoptive parents.

[ 28 ] As of today, the stage of plans for M. is much earlier than the “road testing” ground work that Katarynych J. considers necessary to assess whether an openness order is wise:

18. Participants in an openness plan need to experience it "on the ground" before they can know with any reliability whether the plan has traction; whether what seems to be a good idea in theory is playing out in the child's life in a manner that is serving the child's best interests.

… particularly important consideration where the prospective adoptive parents and the child's significant person have not already laid down a solid foundation of trust and ease in their interactions

… As a matter of human experience, it is hard for a child to root fully in an adoptive life when he has one foot in his pre-adoption life, and vice versa , and particularly so when there is great disparity between the personal and economic resources of the child's significant person and the adoptive family.

[ 29 ] She also warns of the limited expectations under an openness order:

22 At the heart of fairness is the need to ensure that neither the child nor his significant person is being promised something in the openness order that cannot be delivered after an adoption.

23 It is particularly important that the Crown ward understand what it is that adoption with an openness order can give him - and what it cannot.

24 It cannot give him the equivalent of an access order under Part III of the Act.

[ 30 ] I earlier identified that the Application under Child and Family Services Act 145 made sense, that L.M.’s plan is not an openness order but served her primary purpose by giving her occasion to have the issue of access considered by a court.

[ 31 ] After reviewing the specific legislative scheme it is the more clear that the issue of resumption of access is connected to the openness order inasmuch as it would be a precondition to the “road testing”. The Society can seek adoptive placement for M.. The adoption placement they seek will already have an informal openness component since they will include in their search criteria a willingness to allow some continuing relationship with the great grandmother A., age 92 who has exercised weekly access after she relinquished care in June 2009, and the foster mother who has parented M. through his progress from 2009 to the present.

[ 32 ] The cases cited by counsel for the Applicant Mother (para 9 supra) pitted adoption against the benefits of continuing relationship with a parent. The mechanism was long term foster care with an access order. That approach is no longer necessary because a beneficial and meaningful relationship can be continued by an openness order in the context of adoption.

[ 33 ] The finding required of me, after all this circling around the problem, is whether I can and should order resumed access between M. and his mother L.M.. I am informed in this decision by the requirements of an openness order because that is now the mechanism for continuing relationship in the context of adoption.

[ 34 ] I say parenthetically that submissions included some debate about whether it could be said that adoption was, by its nature, better than foster care. The debate arose because of the excellence of this foster mother. Counsel for the Applicant Mother responsibly pointed out legislation [5] consistent with the theme that it is generally felt that children should not languish in foster care. Indeed that is the problem that gave rise to the amendments permitting openness. The Society’s evidence averted to the many contingencies that can interrupt long term foster placement. I do not trouble myself in these reasons with a debate that appears moot on policy grounds.

[ 35 ] Finally, having identified that in deciding whether I can and should order resumed access between M. and his mother L.M. I am informed by the requirements of an openness order, I turn again to the discussion of Katarynych J:

17. 3….The only relationships that are to be preserved by openness order are those shown to be "beneficial" and "meaningful" to the child. …

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.

[ 36 ] As I listened to evidence on behalf of the mother I had in mind a picture of mother and son years down the road, M. still dependent on others, as predicted, to meet many of his needs and having as his most faithful companion his devoted mother who, though she has had difficulties herself that prevented her from raising him, has remained an integral part of his life. In mind’s eye is the touching scene, sometimes glimpsed in our community lives, of the aging parent still patiently guiding an adult son or daughter through daily activities, forever responsible yet constant and happy in the task.

[ 37 ] As I listened I bore in mind too the accumulated understanding of the child welfare experience: that adoptions sometimes break down, that foster care is vulnerable to unpredictable interruption and change, that transition into adulthood leaves many foster children with a sense of having no one in the world who cares about them. The resulting wisdom is that parents, even far from ideal, are nevertheless more likely to hang in with a kid forever and that, marginal or not, they might be truly the best hope to meet the child’s best interests.

[ 38 ] So, I listened to L.M. giving her evidence and enthusiastic description of her son when last she saw him. She was ill when she testified. With many assurances of accommodation if she felt too unwell to continue, adjournment was not sought. Nevertheless, she gave her evidence without hesitation and presented as appropriate and earnest. Counsel reported that an afternoon hospital attendance revealed L.M. had an infection and she did not attend the trial further to hear the Respondent’s evidence though she was present for submissions.

[ 39 ] L.M. recalls the time frame of loss of contact as more modest than others report. She detailed her difficulties in addressing her housing issue that had made visits there difficult and her understanding that not until she had better accommodation in place would further access be a good thing for M. This showed some insight into what circumstances M. needs for positive visits. As reason for not seeking access in different venues she spoke of his discomfort in the Society access room.

[ 40 ] L.M. enthused about her fun with the child and how she did not experience the outbursts in M. that others report as difficult to handle. Indeed there is ample support for her assertion that the visits she had with M. were positive. Her witness, paternal aunt L.S., had provided supervision for a while and neither she nor Children's Aid Society of Simcoe County had criticisms of the way L.M. interacted with M.. This is rather rare in child welfare cases, so quite remarkable.

[ 41 ] L.M. also had some experiences while in school and in the community as a babysitter and child care volunteer. I have no reason to doubt her ability to engage children in splendid play. Even in the court room she was very likeable. The workers bore her no malice and the foster mother liked her too.

[ 42 ] And yet, the Society intends adoption with no informal encouragement of some continuing contact. This is a hard future to contemplate for L.M.. That her relationship with M. is not considered beneficial and meaningful seems unfair to her and she seeks a just result that allows her continued involvement in M.’s life.

[ 43 ] A court is mandated to Justice, but life is not just. Some folks endure disadvantage and sorrow in countless aspects of life while others, no more deserving, are spared. L.M. has had more than her share of challenges that could defeat any one of us. Then, heaped on that are the mental health consequences and impediments and less than helpful choices in situations where she has had so little choice. These disadvantages have made it impossible for her to demonstrate that she can consistently provide the structure and routine that M. needs or even, as it turns out, the consistent access schedule that would make her interaction with M. beneficial and meaningful to him.

[ 44 ] I am very persuaded that L.M. has personal qualities that could create a lovely snapshot of the caring, patient parent to the challenging son, now or in the future, who will always need and crave care and patience.

[ 45 ] But I am the more persuaded that L.M. cannot offer the certainty of tomorrow much less the next weeks and months and years. To a darling lovable child, then an adolescent, then a big strapping teen and a grown man she cannot offer structure, routine and calm. She doesn’t know it herself. She cannot achieve it herself. She has diagnosed difficulties that militate against her valiant attempts. This is why the crown wardship order was necessary. But it gave her the opportunity to continue in relationship with M. through access.

[ 46 ] She did exercise access before and after the crown wardship order in March 19, 2010. It stopped in the immediate context which included the difficulty with neighbours, and finding suitable housing took her a long time. When next she tried to exercise access, time had passed.

[ 47 ] One theme of protest is that L.M. was impeded by the Society in maintaining regular access to demonstrate that her relationship with the child is beneficial and meaningful. This rose from an assertion that the hiatus in access was rather brief before actually prevented by the interim court order of Wood J. in July 2012.

[ 48 ] L.M. thought that her access continued to the summer of 2011 unsupervised after L.S.no longer supervised after November 2010. L.S. supported that her supervision lasted until November 2010. The case worker T.P. who was involved until August 2010 doubted that. She did not bring notes to trial and had little memory of specific dates. The adoption worker who began formal involvement by March 2011 was unaware of any continuing access issue. Noone was absolutely clear and I kept wondering why the foster mother, who all agree delivered M. for access every time, had not been asked. Sure enough, she testified and she had kept notes. They were produced in the form of a contemporaneous August 3, 2010 e-mail from the foster mother to then case worker T.P., that covered a period only after May 3, 2010 when she became concerned about access disappointments for M.. I find as a fact that access was dwindling in May 2010 such that she L.M. was asked to call ahead, and access dwindled further in June and July. There was no access at all after July 21, 2010. L.M. didn't call.

[ 49 ] This is consistent with the fact that new case worker M.A.D. who took over the file in August 2010 had never had contact with L.M. until January 2012 and consistent with the adoption worker M.D., viewing the file in the spring of 2011, being unaware of any issue about severing ongoing access.

[ 50 ] L.M. indicated she began to try to contact the former worker late in 2011 when she got her new suitable premises. She felt she was getting the “run-around” but finally connected with the current worker M.A.D. in February 2012. It was then that the Notice of Termination was served. Many explanations were given. It is not surprising that L.M. was confused but she did the right thing and went to her lawyer and this Application was commenced.

[ 51 ] However, based as it must be on relationship that is beneficial and meaningful to M., it was doomed to fail.

[ 52 ] Most significant is the passage of time for a four year old from July 2010 to late 2011 when L.M., by her own evidence, got suitable premises and began her effort to reach T.P. that eventually led to contact with M.A.D. Not only was this a period of noted progress for M. such that the once unadoptable boy was no longer so, it was a period when his emotional needs were met by the foster mother and great grandmother A.. The memory of any child would be challenged by a hiatus of that length but M. is not any child. He is a child with autism and Global Developmental Delay. He had been in the primary care of people other than L.M. since he was two. Many people are involved with M.: his EA, teacher, OT. PT, case worker, physicians, swim teachers. Most of them have much more contact with him than L.M. He lacks boundaries so seeks from, and heaps affection on many. Of course he does not recognize biological connection so the historical relationship he may have had during period when L.M. managed regular access cannot objectively be as meaningful and unique as it undoubtedly is for L.M.

[ 53 ] In assessed areas of development M. was very and is still significantly delayed. He presents as a younger child. It seems likely that his need for regular and frequent access would be even greater than is commonly understood in child welfare and custody/access matters to be tremendously important for the development of relationship and attachment.

[ 54 ] The evidence is replete with M.’s need for predictable routine and reliable response to his needs. Alas the hiatus in access demonstrates L.M. cannot achieve routine.

[ 55 ] I have spoken of L.M. as likeable, appropriate and earnest but the mere fact that she did not recognize that time passing that would melt away her relationship with M., from M.’s perspective, demonstrates clearly that she just cannot do what needs to be done to maintain relationship. I empathize that with all her valid concerns and chaos that life brings her way, it is very difficult for her. That July to November of the next year could slip by shows very simply that the task is too great. She is a loving mother, but life so overwhelms her that she cannot accomplish relationship. The Society did not impede her relationship with M.. Time passed, and for him, relationship is gone.

[ 56 ] So, informed by the openness legislation but also on first principles of human relationship, I find it is unwise to permit the reintroduction of M. to his mother.

[ 57 ] I have made this decision without relying on evidence that an adoption search for a young child is made more complicated by a requirement that adoptive parents consider the accommodating of a relationship with a biological parent. Finding a willing and appropriate family for this needy boy will be a challenge under any circumstances, even though every witness speaks of him with great affection. Since I have found there is no present relationship between M. and his mother, there is little concern that such prior relationship as they had will impede his investment in an adoptive family. That concern also does not guide my decision as it might in other circumstances where a clean break is necessary to facilitate new attachment. Rather it is simply the sad reality that L.M. cannot offer the love she feels with the constancy necessary for beneficial and meaningful relationship with her beloved M.

[ 58 ] Her Application must be dismissed.

“ original signed before reduced to initials ”

EBERHARD J.

Date: November 27, 2012