CITATION: C.A.S. v. L.M. et al, 2013 ONSC 7564

COURT FILE NO.: FS-59-12

DATE: 2013-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of the Regional

Municipality of Waterloo

J.W. Boich, for the Applicant

Applicant

• and -

L.M.

Brigitte Gratl, J.D., for the Respondent

Respondent

• and –

A.M.

Respondent

No one appearing for the Respondent,

A.M.

Phaedra Kloder for The Office of the Children’s Lawyer

HEARD: December 5, 2013

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

ADDITIONAL REASONS FOR DECISION

A. Introduction

1Immediately after adjourning court on Thursday, December 5, 2013, I realized that I had directed much of my explanation of my decision to L.M. and Mr. Gooch to recognize that I was well aware of the impact thereof. I devoted little focus on the legal path that I had followed to arrive at that decision. As I have not yet signed a formal order (other than my brief endorsement on the Notice of Cross-Appeal), I am not functus of the matter. I now offer this more clear and fulsome explanation of my conclusion.

2Mr. Boich sought an order overturning McSorley J.’s access order of July 5, 2012. He based his client’s Appeal on two grounds, namely that:

I. The trial Justice erred in her interpretation of the intent of S. 59 (2.1) of the C.F.S.A.; and

II. The trial Justice erred by crafting an order that created a unique access construct that directly contradicted and contravened the legislated process set out in sections 141.1, 143 and 145.1 of the Act.

3While I then (and do now reiterate) commended the Learned Justice for her compassion for the three boys, K. age 12, A. age 10½ and M. age 7, and for realizing the untenable position in which the boys were placed resulting from the conflict between her Order for Crown Wardship of April 12, 2012 (143 pages of Reasons resulting from 57 days of evidence heard over the span of a year) and her decision to grant access to them three months later, I concluded that the Appeal must succeed on the basis that she was not correct in law to create her own “fine balance” between the intent of the legislation (regarding access to Crown Wards) and her sympathy for the boys not being able to see their mother, stepfather and adult brothers while they awaited the adoption process to unfold.

B. Standard of Review

4I accept all counsels’ view of the standard of review as they have included in their Factums as follows:

16. … The standard of review on a question of law is correctness. The standard of review on a question of fact is “palpable and overriding error”.

Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 8, 12

17. A “palpable” error is one that is obvious, plain to see or clear. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than logical inference. A failure to consider relevant evidence can also be a palpable error if that evidence is potentially significant to a material finding of fact.

Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (C.A.) at paras. 296, 343

18. An “overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. There the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

Waxman v. Waxman, supra at para. 297.

C. Access to a Crown Ward

5Section 59 (2.1) of the C.F.S.A. (the Act) sets out the criteria that must be addressed when a court considers and decides this issue, as follows:

59 (2.1) 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. 2006, c. 5, s. 17 (2).

6Mr. Boich argued that the trial judge mis-applied both subsections of section 59 (2.1) to the facts of this case and thus made errors of fact when she concluded that continuing access was both (a) “meaningful and beneficial” and (b) would not “impair” (the boys’) future opportunities for adoption.

(a) “Meaningful and beneficial”

7In her written Reasons, McSorley J. explained in great detail her thought process of how the facts of this case led her to conclude that continued access was both “meaningful and beneficial” to the boys (see paras. 26-29 inclusive of her Reasons).

8I am satisfied that McSorley J. directed her mind to: (a) the wording of the Legislation; (b) its clear intent; and (c) the strong direction that access to CrownWards occupies a unique place in the principles and fundamental thrust of the Act and that there existed a presumption against such access. I accept that there was an evidentiary basis (not misunderstood or misinterpreted by her) that met her subjective view that access would be meaningful and beneficial.

9As I identified in court, I was unpersuaded Mr. Boich’s submission regarding this aspect of his argument. I found that McSorley J. did not make “an error of principle, misapprehend the evidence nor arrive at a clearly unreasonable result” (see para. 11 CAS Toronto v. K.K. and J.M., 2006 CanLII 2755 (ON CA), [2006] O.J. No. 384 (O.C.A.).

(b) Impair … Future Opportunities for Adoption

10Since Ms. Gratl indicated during her submissions that she would be appealing my decision, I wish to clarify the process by which I arrived at concluding that the learned Trial Justice did err in principle and that her access order did indeed create an unreasonable, unfair and unsustainable result for the boys.

11I was influenced by, accept and agree with the extensive body of case law (and submissions) presented by both Mr. Boich and Ms. Klodner regarding the test for access to a Crown Ward in their Factums, duplicated here as follows:

36. The onus to rebut the presumption against access for a crown ward is on the parents. The parents have the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test for them to meet. Where a Crown Wardship order has been made there is no obligation on the part of the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family.

Reference: Catholic Children’s Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. No. 2717 at paragraph 176

37. Even though the access visits were generally enjoyable to the child, it was up to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child’s need for continuity of care, and for a secure place as a member of a stable family.

Reference: Catholic Children’s Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. No. 2717 at paragraph 179

38. Until recent amendments to the Act, a Society was unable to place a crown ward for adoption if there was an outstanding access order under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow Societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child’s opportunities for adoption. Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that access will not impair the child’s future opportunities for adoption. The operative words of s. 59(2.1)(b) – “will not impair” – place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption. The onus on the parents remains high.

Reference: Catholic Children’s Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. No. 2717 at paragraph 180

Reference: Catholic Children’s Aid Society of Hamilton v. L.S. and W.B. 2011 ONSC 5850, [2011] O.J. No. 4512 at paragraphs 418-427

39. Recent cases have considered potential reasons why courts might reject claims for access on the second prong of the test. See Catholic Children’s Aid Society of Toronto, Applicant, and M.M. Respondent, and J.N., Respondent [2012] O.J. No. 3240 and Catholic Children’s Aid Society of Hamilton v. L.S., supra. The following is a list of reasons why claims for access have been rejected, or might be rejected, in the future. This list is in no way exhaustive.

40. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved.

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behavior. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child’s future opportunities for adoption.

Reference: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019 at paragraph 17

40. Although no evidence “on the beliefs and attitudes of its pool of potential adoptive parents” as regards possible openness arrangement was called, such evidence is not necessary for the court to decide the issue in this case. If the court is not satisfied that an access order would not impair S.D.E.’s future opportunities for adoption, then no access order can follow.

Reference: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019 at paragraph 73

41. In the event a court were to grant an access order and the Society were to begin planning for her adoption, anyone interest in adopting a child subject to an access order would have to be told the history of this file because of the potential for an openness order, which could potentially reduce the pool of adoptive applicants.

Reference: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019 at paragraph 74

42. In assessing whether access to a Crown ward is beneficial and meaningful, we have to look beyond the basics. We have to set a higher standard than merely confirming that so far visits have been pleasant and uneventful. There needs to be more than rudimentary affection.

Reference: Catholic Children’s Aid Society of Toronto v. J.T., R.B. and M.B., [2012] O.J. No. 3274 at paragraph 944

43. We have to ask: Where are we going with this? It’s not just a question of whether the child is to have contact or no contact. The court must carefully consider the specific access options available for this parent, and decide whether this child will actually derive a benefit from the access regime being proposed. We must consider the short term and long term implications for the child. We must guard against the possibility of access to the Crown ward jeopardizing the permanence and psychological stability which we are otherwise attempting to achieve.

Reference: Catholic Children’s Aid Society of Toronto v. J.T., R.B. and M.B., [2012] O.J. No. 3274 at paragraph 945

44. The court must be mindful of the possibility that Crown wardship with access might impact on a child’s adoptability because it might deter adoptive parents from proceeding. As Brown J. recently stated in C.A.S. of Hamilton v. M. (SCJ Hamilton File C 1617/07 released June 18, 2012):

934The children must be given the best possible chance of permanency stability by way of adoption.

935It is not unreasonable to assume in a case such as this that potential adoptive parents may shy away from any sort of openness arrangement primarily because of concern over the children not being able to settle in their new home(s) and secondarily because of the protection concerns involving the parents as set out in herein and may be deterred from even pursuing adoption in the face of a possible openness request, which could result in extended litigation and possibly an order connecting the adoptive parents to the biological parents well into the future.

45. The operative words of s 59(2.1)(b) – “will not impair” – place an onus on the parents to satisfy the court that access to the ‘Crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption.

Reference: Catholic Children’s Aid Society of Toronto v. J.T., R.B. and M.B., [2012] O.J. No. 3274 at paragraphs 961 and 962

46. Since the amendments to the Act, there have been cases which have refused access orders to biological parents who have had a history of undermining a child’s foster placement or of failing to work co-operatively with Society workers. The courts in those cases reason that a parent’s history of failure to work co-operatively with Society workers. The courts in those cases reason that a parent’s history of failure to support a child’s foster placement is a good predictor of future failure to support an adoptive placement.

Reference: Catholic Children’s Aid Society of Toronto v. S.S.B. and R.O.C. and C.J. [2012] O.J. No. 4160 at paragraph 185

47. The court cannot make an order that would have the effect of significantly reducing the pool of potential adoptive parents for children who are made Crown wards.

Reference: Catholic Children’s Aid Society of Toronto v. S.S.B. and R.O.C. and C.J. [2012] O.J. No. 4160 at paragraph 191

26. “Impair” means to “diminish, reduce, jeopardize or interfere with” the child’s future opportunities for adoption.

Catholic Children’s Aid Society of Hamilton v. L.S. and W.B., 2011 ONSC 5850, [2011] O.J. No. 4512 (S.C.J.) at para. 427

27. When a child is a Crown ward with access is placed for adoption by a Children’s Aid Society, the placement itself terminates all orders for access. If the Society intends to place a Crown ward who is the subject of an access order for adoption, the Society must give notice of its intent to the person who has an order of access to the child. That person may then apply within 30 days of receiving the notice for an openness order. Openness orders may be made only if such an order is in the best interests of the child, and the openness order will permit the continuation of a relationship that is beneficial and meaningful to the child. Therefore, Crown wards who have access to their birth family can be subject to future litigation about whether an openness order is to be made, and can have court-ordered contact with their birth family after they are adopted if the court makes an openness order.

CFSA, ss 143(1), 145.1.1, 145.1.2

28. A factor the court must consider in determining whether the presumption against access has been rebutted is whether the possibility of an openness order after adoption will impair a child’s opportunities for being adopted.

Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267, [2012] O.J. No. 223 (O.C.J.) at paras. 24, 25

29. The mother testified that she intends to bring an application for an openness order if the children are placed for adoption. The trial Judge gave no weight to the evidence of the adoption worker, Tecla Jenniskins, that these children need the stability of a permanent adoptive placement as soon as possible, and that most adoptive families are concerned about being ordered to maintain contact with birth families. If access is granted to these children, the possibility of a future application for an openness order could limit the number of potential adoptive parents available for these children.

30. Given these children’s special needs, and the desirability of finding a single placement for them, the trial Judge erred in ordering access, by failing to consider the impact of access on the number of potential adoptive placements and in the face of the evidence that access would constitute an impairment of their opportunities for adoption. The pool of adoptive parents is already constrained for these children by virtue of their special needs and should not be further limited by granting the mother an entitlement to apply for openness.

12I was also further influenced, accepted and took direction from Leach J.’s decision in Huron-Perth CAS v. J.F. (2012), ONSC 5142 at paras. 61 to 75:

61Prior to the recent CFSA amendments, it was almost impossible for a birth parent to prove that an access order would not impair a Crown ward’s future opportunities for adoption, because the mere existence of any order permitting access to a Crown ward made the ward ineligible for adoption. In particular, the pre-amendment version of s.141.1(a) of the CFSA read as follows:

141.1 Limitation on placement by society - - A society shall not place a child for adoption until,

(a) any outstanding order of access to the child made under subsection 58(1) of Part III has been terminated.

62Birth parents might have been able to satisfy a court that future adoption opportunities for a child likely did not exist in any event; e.g., because the child’s wishes to return to the birth parents’ care were to overwhelming that the child would never consent to a placement, or because the child’s special needs were so extreme that an adoption simply was not a realistic possibility. However, the inherent and unavoidable impediment to adoption that would be created by a Crown access order made it extremely difficult to satisfy the requirements of s.59(2.1)(b) of the CFSA. For all practical purposes, the implications of former s.141.1 of the CFSA usually were sufficient reason to deny a request for court ordered access to a Crown ward.

63As noted by the trial judge in this case, recent amendments to the CFSA now have eliminated the former prohibition on placement of a Crown ward for adoption when an access order is still in place. In particular, the former s.141.1 of the CFSA now has been replaced by the new s.141.1.1 (1), which reads as follows:

141.1.1 Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part III (Child Protection), 20111, c.12, s.3.

64However, the trial judge also seems to have assumed, (at paragraph 70 of his reasons), that elimination of the prohibition also now justifies and entails an automatic finding, without further inquiry, that access orders in relation to a Crown ward will no longer impair a ward’s future opportunities for adoption:

The Child and Family Services Act was amended effective September 1, 2011 and now allows Crown Wards subject to an access order to be adopted. Accordingly, the Court finds that the second part of the test has been met. [Emphasis added.]

65With respect, that assumption was fallacious, and proceeding on that basis constituted an error in law.

66Elimination of the former s.141.1 prohibition removes one possible impediment to a Crown ward’s future adoption opportunities that may flow from an access order. However, it does not necessarily remove the possibility of any such impediments.

67Notwithstanding the recent legislative amendments to the CFSA, the court must still examine the evidence and determine whether a party seeking access to a Crown ward has proven to the court’s satisfaction, on a balance of probabilities, that such an access order will not impair the ward’s future opportunities for adoption. In that regard, the relevant test, approach and onus remain unchanged.

68Support for that conclusion can be found in a number of post-amendment decisions at first instance, such as Catholic Children’s Aid Society v. S.S., 2011 ONCJ 803, [2011] O.J. No. 6076 (O.C.J.), at paragraph 145:

Until recent amendments to the Act, a society was unable to place a Crown ward for adoption if there was an outstanding access order under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow societies to place Crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child’s opportunities for adoption. Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s.59(2.1). The court must still be satisfied that “access will not impair the child’s future opportunities for adoption. The operative words of s.59(2.1)(b) – “will not impair” – place an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption. The onus on parents remains high.

69Very similar remarks are found in the earlier case of Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. NO. 4512 (S.C.J.), at paragraphs 419-421, which the court in Catholic Children’s Aid Society v. S.S. cites and seems to closely paraphrase if not quote.

70In the case before me, the trial judge therefore erred in law by apparently failing to consider, in any way, whether the access order requested by M.F.’s mother might still impair M.F.’s future opportunities for adoption, notwithstanding the recent legislative amendments.

71As noted in Children’s Aid Society of Toronto v. T.L., supra, at paragraphs 28-29:

In the cases discussing access to Crown wards, … the term “presumption” is used to describe section 59(2.1). Earlier I referred to it as a gateway. It is a very narrow one. It is also an unusual provision, phrased initially as a prohibition. “A court shall not make or vary an access order …” (emphasis added). There is a way out of the prohibition, in the clause beginning “unless the court is satisfied”, but that in turn is followed in section 59(2.1)(b) by another negative, “access will not impair…” (emphasis added). If this is a presumption, it is an extremely strong one.

Section 59(2.1)(b) operates even if there is no immediate prospect of an adoption: “A court shall not make or vary an access order … unless the court is satisfied that … access will not impair the child’s future opportunities for adoption” (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt …?

[Italicized emphasis added.]

72In my opinion, the underlying evidence in this case, coupled with the proper approach mandated by s.59(2.1)(b) of the legislation and governing authorities, should have led the trial judge inexorably to the conclusion that the requested access order definitely would impair M.F.’s future adoption opportunities.

73M.F.’s uncle and aunt, (whom the Society regards as a suitable permanent placement), stand ready to adopt M.F. provided they and their family are not subjected to ongoing mandated access between M.F. and her mother, which in their opinion made M.F.’s earlier stay with them unworkable and intolerable. C.F. was quite clear about that. Yet such access is precisely what the trial judge proceeded to order.

74In his reasons, the trial judge effectively acknowledgd the probable impairment to the contemplated adoption that might result from the stated inhibitions of Mr. and Mrs. F. and the judge’s contemplated access order, but hoped it would be overcome, presumably by Mr. and Mrs. F. changing their mind and agreeing to tolerate precisely what they have said they are unable to tolerate (emphasis added):

While it may be that contact between M.F. and her mother does, at times, provide some inconvenience and some disruption to the F. household this Court hopes that an adoption by the F.s can continue so as to provide M.F. with a stable, loving home while at the same time ensuring continued contact between M.F. and her mother (emphasis added).

75This was inappropriate. If a contemplated access order self-evidently is likely to impair a Crown ward’s future adoption opportunities, the applicable onus has not been met, and s.59(2.1)(b) of the CFSA demands that the order not be made. (My emphasis in paras. 66 and 74)

13As I attempted to explain orally, McSorley J. should not be faulted for her reasoning or her conclusion explained in para. 54 (set out below) based upon her “hopes”; her solicitude for the boys; and the speculative affidavit evidence (of Ms. Jenniskins) before her at the four day access hearing.

14However, with hindsight and the additional (fresh) evidence that was, on consent, filed before me (and that I considered), it is entirely clear that McSorley J.’s “hope” of providing “the best of two worlds …” has resulted in an unreasonable suspension of the boys between two certainties: (1) The boys are Crown Wards that cannot be returned to their mother; and (2) Due to the continuing access order (which they enjoy), no family can be found for them (together, with their special needs and with regular contact with their birth family); that is willing to consider adopting them as long as access continues.

15The two affidavits of T. Jenniskins show that the “legal limbo” into which the boys have been thrust by McSorley J.’s order with her best of intentions, has caused the only appropriate adoptive family for them that can be found to “back off” from their seeking to adopt these three boys. This is a reality that McSorley J. “hoped” would not happen but in fact exists and proves the point. It is not the boys’ special needs that has caused this family to hesitate from proceeding with the adoption, and it is not that the boys want to be adopted together. Based upon the evidence before me, Ms. Jenniskins avers that it is because “Family A” is unwilling to enter into a relationship with the birth family that is created by McSorley J.’s access order that has effectively impaired (“jeopardized”, etc.) their possible adoption.

16To be fair. Ms. Jenniskins also identifies that there is “some instability in their (i.e. Family A) own lives at this time …” which instability “may ameliorate …” in time. However, that family, with whom the boys have “a previous connection …” is, after well over a year, the only family that has shown “an interest” in the future adoption of K., A. and M.. It is the existence of the access order that has created the real impediment.

17It is clear to me by the wording of paragraph 54 of her Reasons (following) and the way McSorley J. constructed her order in paragraph 55 (and the wording used) that McSorley J. intended and expected the Agency to get to work (in July 2012) to find the boys an appropriate adoptive home:

54I accept that it is a very rare case when access continues after a finding of Crown wardship. But having regard to the very high needs of these children, their closeness to one another and their mother and older brothers and the fact that finding an adoptive home for them will not be easy, it seems to me that access will be more beneficial to their well being than terminating it. I have also considered that the access order no longer prevents a society from seeking an adoptive home and planning for the adoption of the children pursuant to the amendments in s. 141.1.1.1 Hopefully, this provides the best of two worlds for the children, maintaining their important relationship with their birth family while also seeking permanence and stability through adoption for them.

55Having said that, I believe it important that access remain supervised on an one to one basis to protect the children from any upsetting and disturbing conversations about their caregivers or potential adoption. Further, I believe it necessary to reduce the access on a gradual basis so that the children can acclimate to the possibility of not seeing their older brothers or mother as regularly and to avoid an abrupt and sudden end to access in the event an adoptive home is found for them.

18Unfortunately for the boys, McSorley J. was wrong to create a set of circumstances with her July 5, 2012 order that has thrust the boys into a “Catch 22” situation with an unreasonable (and unfair) result.

19As Pazaratz J. observed at para. 346 in CAS Hamilton v. C.G., 2013 ONSC 4972, [2013] O.J. No. 3520:

Once the difficult decision is made that adoption is in the best interests of the child, the court’s focus should be to ensure that the adoption process is not jeopardized or delayed. An obvious consideration is to ensure that prospective adoptive parents are not discouraged or “scared off” by the possibility of future litigation or contact with a biological parent. It would be overreaching to presume that all “Crown wardship with access” orders will automatically deter potential adoptive parents. But the court must decide the issue based on evidence – and s. 59(2.1) places the onus is on the parents to present that evidence. (my emphasis)

20I find that there is clear, cogent and uncontroverted evidence that the access order has deterred, discouraged and “scared off” the only potential adoptive family available to these boys and that the parents have not discharged their onus to prove otherwise, on a balance of probabilities.

21In CAS Hamilton v. C.G. (supra), Pazaratz J. also identifies that the court process must not jeopardize or delay the legislated adoption process. I agree entirely with that view and attempted to have counsel for the mother to respond to the effect that continued access and further litigation (i.e. her declared intent to appeal my order; her intent to apply for an openness order, etc.) would have on the boys while they await the result of same. She was unmoved and entirely unconcerned by the delay for the boys that those legal steps would produce. She focused only on her client’s rights and (erroneously) on s.70 (3) extensions of time allowed during appeals.

22Accordingly, I found that the Appellant should succeed on this aspect of its argument.

D. Structure of Decreased Access per the Order

v.

The Effect of “Placement” of the Boys for Adoption per the Legislation

23McSorley J. explained her intentions in para. 54. However, the difficult operative portions of her access order are set out in para. 55 (c) and (e).

24I considered the wording of the Legislation in s.s. 143, 145.1.1 and 145.1.2 and compared that with the structure intended and created by the Trial Judge’s access Order.

25As explained, I found the two incompatible and inconsistent. I therefore concluded that:

(a) both could not stand together;

(b) the learned Justice lacked the authority to create here own unique process whereby future access “should then be further decreased …”;

(c) she lacked the authority to require that the court … “will consider a termination of access and the possibility of openness to the birth family on reasonable terms having regard to the placement” … (my emphasis) in the face of an existing legislated process whereby that eventuality is addressed and directs:

(i) how and when notice is to be given;

(ii) who may and what motion(s) are to be brought; and

(iii) what factors/criteria are to be considered in coming to any decision regarding future birth-family access.

26I found that on any close reading of paragraphs 54 & 55, of McSorley J.’s Reasons, it is clear and unambiguous that she intended and expected that the Agency would immediately proceed with the adoption process/search for the boys. It is also clear to me by her language that she believed that as a result of the recent amendment of s.141.1.1, that access in the meantime, pending placement for adoption and even after placement (… “allow them to settle into their new placements”) would not impair or impede that process going forward with all due dispatch. Reality has proven her wrong.

27However, in an effort to be clear and to “structure” the inevitable and gradual (her words are “… to slowly accept …”) termination of access due to the inescapable result of her Crown Wardship Order (and the legislated mandate of the Agency), the learned Trial Judge exceeded her authority and set out her own process of access reduction, then created a further court hearing (who was to be the moving party?) that “will consider” whether any/further/different/ unsupervised/ supervised/frequent/overnight/on terms, was “possible”. I do not understand what test she had in mind that would allow the court to decide the access issue on a “possibility”.

28The test to be applied in every respect in every proceeding within the Act is only and always the child’s “best interests”.

29Accordingly, in the face of an already existing legislated process, Justice McSorley was incorrect in law and (despite her laudable intentions) her access structure must collapse and be rescinded in its entirety.

30Counsel for the Respondent invited me to sever off clauses 55 (c) and (e) from the other operative parts of the Access Order. I decline to do so. The Order’s terms are inter-dependant and are structured to “ease the pain” of loss both by the boys and their birth family. They cannot be “severed off”.

31Accordingly, that submission cannot prevail.

32What must prevail is the Legislation; its words; its intent and its mandate.

33Therefore, the Appeal is granted both on this ground and the “will not impair” ground. The order sought is granted.

34No costs were sought and therefore none are granted.

G.A. Campbell J.