CITATION: F. v. Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402

COURT FILE NO.: FC-13-493-OP

DATE: 20170912

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.R. (S.), Applicant

AND:

K.R., B.S., E.S., SIMCOE MUSKOKA CHILD, YOUTH & FAMILY SERVICES, Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: D. Manning, for the Applicant

D. Lyons-Batstone, for the Respondent K.R.

J.C. Rogers, for the Respondent B.S. (not present)

C. Smuk, for the Respondent E.S. (not present)

C. Gilchrist, for the Respondent Simcoe Muskoka Child, Youth & Family Services

HEARD: July 21, 2017

ENDORSEMENT

Introduction

[1] Little B.R. is two years old. In his short life he has suffered from a number of serious illnesses and resultant complications. He is developmentally delayed. He has had more medical interventions in his short life than many of us have had in a lifetime.

[2] Fortunately, B.R. has a family that loves him and has largely met his special needs. This family, however, did not consist of his natural parents. B.R. was apprehended by the local Children’s Aid Society at birth and placed with a foster family in May, 2015. Since then, the foster family has attended to all of B.R.’s medical and developmental issues.

[3] B.R.’s mother, K.R., has, to her credit, acknowledged that she cannot meet her son’s needs. She has her own problems, including developmental delays and mental health issues. She consented to an order for Crown wardship in respect of B.R. on August 26, 2016.

[4] Under that order very limited access was granted to K.R. She has three face-to-face visits per year, in December, May and October of each year. Access is supervised by the Society. If two face-to-face visits were missed in a row, visitation was to be terminated until the mother was able to contact the adoptive parents via email to provide evidence that she was emotionally stable in order to resume the access schedule. In addition, if the child was hospitalized for a period longer than three weeks or for a life threatening event, the mother was entitled to attend at the hospital with her community support for a “short visit”.

[5] In the same proceedings, B.R.’s older brother, E.S., was placed with the natural father to both of these children, B.E.S., by way of a deemed custody order under s. 57.1 of Child and Family Services Act (“CFSA”).[^1]

[6] The foster parents now wish to adopt B.R. Douglas Manning is counsel for this child. Because B.R. is the access holder under the Crown wardship order, Mr. Manning brought an application for an openness order on behalf of B.R. Initially Mr. Manning sought openness for B.R. with his brother, E.S., his father, B.E.S., as well as K.R. The Society agreed with openness to E.S. and B.E.S., but issued an answer objecting to openness between K.R. and B.R. Mr. Manning responded by filing an amended openness application withdrawing the request for openness between B.R. and K.R.

[7] K.R. was served with the amended application on May 8, 2017. She has filed neither an answer nor an application for openness to B.R. However she has filed affidavits in answer to the summary judgment motion brought by Mr. Manning. In the summary judgment motion argued before me, Mr. Manning requests on behalf of B.R. that the request for the openness between K.R. and B.R. be withdrawn or alternatively an order that K.R. shall not have openness to B.R. once the adoption is finalized.

[8] Notwithstanding the fact that the respondent mother had filed no answer and notwithstanding the fact that she is not an access holder under the Crown wardship order within the meaning of the CFSA, counsel agreed that K.R. could argue the motion as if she was an access holder entitled to apply for an openness order, and as if she had filed an answer in these proceedings.

Adjournment Request

[9] At the opening of the motion Ms. Lyons-Batstone, counsel for K.R., requested an adjournment of the motion. She submitted that when the matter was set down for summary judgment on July 21, 2017, she was planning to go on holidays but agreed to the date because she was able to respond the material filed by the Office of the Children’s Lawyer which had already been served on her. She responded to Mr. Manning’s motion by way of affidavit sworn by her client on July 11, 2017. However, when the date was set, neither she nor her client had in hand the affidavit of the adoption worker, Danielle D’Eon, which contained extensive material respecting K.R.’s arrest record and her recent involvement with the Barrie City Police since the Crown wardship order was made. That affidavit was lengthy and was served personally by the Society on K.R. while Ms. Lyons-Batstone was on holidays. The purpose of the affidavit was to show the continued mental instability of K.R. It remains unclear as to when this affidavit was served but certainly Ms. Lyons-Batstone did not have it in her posesssion when she prepared responding material on behalf of K.R.

[10] I held the matter down so that Ms. Lyons-Batstone could prepare affidavits in response to Ms. D’Eon’s affidavit and two responding handwritten affidavits were provided to me, one by the respondent mother, and one by her support worker from the David Busby Street Centre. I refused the adjournment based upon the endorsement of Wildman J. dated June 26, 2007, when this matter was adjourned to July 21, 2017. Wildman J. stated at that time that it was “very important that the MSJ/default hearing proceed with or without counsel. It is not in the best interests of the child to have his future left uncertain particularly given the status of physical health that the proposed adoptive family is dealing with”.

[11] Justice Wildman also ordered this motion date as being “peremptory with or without counsel.” Ms. Lyons-Batstone acknowledged that she was aware of that endorsement which had been served upon her prior to going on holidays. As well, as will be seen below, the recent police involvement issues spoken of in the adoption workers affidavit played a small role in my decision; several of the more important incidents in question, including an alleged assault on B.E.S. in December, 2016, were already before the court in affidavits filed and served on Ms. Lyons-Batstone prior to her going on holidays.

[12] Accordingly, argument of the motion went ahead on July 21, 2017.

Analysis

[13] The issue before the court is whether there was any genuine issue for trial as to whether the respondent mother’s claim for openness should be dismissed or whether a trial was necessary on that issue.

[14] For the reasons set out below, I have determined that any claim by the mother for openness is dismissed and that, subject to the limited openness as offered by the adoptive parents, an order shall go according to paragraphs 1 and 2 of applicant child’s summary judgment motion found at Tab 7 of Volume 1 of the Continuing Record.

Positions of the Parties

[15] Mr. Manning, supported by Society counsel, argued that there was no genuine issue for trial in respect of the mother’s claim for openness and that openness was not in this child’s best interests. He firstly noted that the mother had historically had very little access with the child and did not arrange for the December 2016 face-to-face visit that she was permitted under the access order appended to the Crown wardship order of August 26, 2016. It was only when the matter was brought forward in April of this year that the mother requested a visit which was arranged by the Society.

[16] Mr. Manning also pointed out that the mother was unable to understand or accept that, once the adoption went through, she would no longer retain her position as the mother to this child or accept the fact that the foster family would now become the “forever family” for B.R. Because of this, the foster family was extremely uncomfortable with ongoing access between B.R. and K.R.[^2] Without the requisite comfort level of the foster family which was required for ongoing access, and without the mother’s acceptance of the adoption process, Mr. Manning was adamant that it was not in the child’s best interests that openness be permitted in the matter.

[17] Mr. Manning pointed out that there was no real issue on the facts in the matter. Although there was some controversy as to the seriousness of an assault that took place between the mother and B.E.S., the real issue for consideration by the court was the acceptance by the mother of the adoption and her understanding that she no longer would be the mother of this child once the adoption went through. He pointed out that there was no necessity for a trial because the issues concerning the mother’s acceptance of her place in this process was uncontradicted on the evidence.

[18] Ms. Lyons-Batstone argued vigorously that there were at least two issues for trial. Firstly there is the issue of the recent Crown wardship order itself which provided for access between the respondent mother and child. Ms. Lyons-Batstone pointed out that the it was the mother’s understanding that access provisions in the Crown wardship order would be incorporated into the adoption order and the openness provisions would continue under the adoption order. That was certainly apparent from the terms of that order. Ms. Lyons-Batstone says that a trial is necessary to deal with her client’s understanding of the provisions of the Crown wardship order and whether that should affect the openness to be allowed by the respondent mother once the adoption takes place.

[19] The other major issue raised by Ms. Lyons-Batstone was the fact that B.R.’s sibling, E.S., would continue to see K.R. under the proposed openness order requested by Mr. Manning. Ms. Lyons-Batstone suggested that it was a triable issue as to whether this would affect the best interests of B.R. as it was proposed that he be treated differently from his sibling who he would continue to have contact with over the years. She said expert evidence would be required to testify as the effect that this difference in access would have on both children in the years ahead.

Summary Judgment

[20] This is a motion for summary judgment; by agreement of the parties, it is being addressed as if there was actual openness application by the respondent mother before the court(even though one has not been served or filed).

[21] In family law matters summary judgment shall be granted under Rule 16(6) of the Family Law Rules[^3] where there is “no genuine issue requiring a trial of a claim or defence”.

[22] Rule 16(4) sets out the requirements of a motion for summary judgment:

1. the party making the motion shall serve an affidavit or provide other evidence setting out specific facts showing there to be no genuine issue for trial;

2. the responding party must respond; and

3. under Rule 16(4.1) the responding party cannot make “mere denials” but must provide specific facts showing a genuine issue for trial.

[23] The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”. See Catholic Children’s Aid Society of Hamilton v. B.W., [2015] O.J. No. 6495 at para. 84.

[24] It is to be noted as well that the court’s role is limited in determining the threshold issue of whether is a genuine issue for trial. If the court finds that there is no genuine issue for trial, summary judgment must go. Otherwise if there is a genuine issue, the court should order the matter to proceed to trial: see Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21 and B.W., supra. at para. 95.

[25] The burden is on the applicant to set out evidence of specific facts showing there to be no genuine issue requiring a trial. However once the applicant make a prima facie case, the evidentiary onus shifts to the respondent. The respondent then must point to evidence of specific facts showing a genuine issue for trial: see Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847 (Div. Ct.) at para. 28.

[26] It is important to keep in mind the respective onuses of the parties. It is well known that the onus is on the parent seeking openness (as with a parent seeking access in a Crown wardship situation) to prove that access to the child is both meaningful and beneficial to the child. Notwithstanding the fact that a parent has an onus to prove access to be meaningful and beneficial, this does not in itself shift the onus in the summary judgment motion, which remains on the moving party to show there to be no genuine issue for trial. Accordingly the moving party must “satisfy this court that the mother would be unable to prove at a trial that access would be beneficial and meaningful for her children were some form of access to be ordered.”[^4]

Openness

[27] This summary judgment motion involves a claim for openness by the respondent mother. She wishes to continue her entitlement to see B.R. on the same terms and condition as set out in the Crown wardship order. The foster parent does not object to some openness but does not feel comfortable with face-to-face meetings or with the respondent mother knowing the foster parents’ identity, which will be necessary once the Society ceases its involvement wth access because of the adoption. The adoptive parents have offered to establish an email address with which the parties can update the respondent mother quarterly and to which the respondent mother can send information. Under the proposal, there would be no obligation on the adoptive parents to respond to emails from the respondent mother more than once every two months.

[28] The provisions regarding openness in the CFSA were established relatively recently. Notice of the Society’s intent to place B.R. for adoption has been made under s. 145.1.1(2) of the CFSA; once this notice has been given, an access holder under a Crown wardship order may then apply under s. 145.1.2(1) for an openness order. As noted above, B.R. holds the right to access under the Crown wardship order in the present case.

[29] The criteria under which an openness order is granted are set out in ss. 145.1.2(5) and (6) which read as follows:

(5) Where an application for an openness order under this section has been made, a society shall advise the person with whom the society has placed or plans to place the child for adoption or, after an adoption order is made, the adoptive parent of the outcome of the application.

(6) 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 he or she is 12 years of age or older.

[30] Under s. 145.1.2(6) of the CFSA, the best interests of the child must be considered in the making of an openness order. Those criteria for the child’s best interests are set out in s. 136(2) of the CFSA which reads as follows:

(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 take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships by birth or through an adoption order.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The child’s views and wishes, if they can be reasonably ascertained.

9. The effects on the child of delay in the disposition of the case.

10. Any other relevant circumstance.

[31] A review of the case law as provided to me by counsel indicates that the criteria for access for a Crown wardship order differ with the criteria for an openness order. That results from the fact that a request for adoption shifts the nature of the best interests of the child. While a Crown wardship order is intended to provide for the protection of and permanency of the arrangements for the child for the foreseeable future, adoption is for the purpose of ensuring 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.

[32] As pointed out by counsel, when a Crown wardship order is granted and the court considers whether access would be meaningful and beneficial, the court can consider the ongoing relationship between the mother and the child as adoption may not be a consideration at the time Crown wardship is granted. Accordingly what is being preserved when a Crown wardship order is granted with access is the preservation of the parental relationship between the child.

[33] Adoption is different. It is basically a negative process which effectively cuts out the biological parents as operative parents of the child. The adoptive family is now the “forever family” and any openness order has to be structured to meet the interests of permanency and the success of the adoption. That is quantitatively different from maintaining an ongoing relationship between parent and child in the face of a Crown wardship order.

[34] The case law has attempted to list the criteria necessary for the granting of openness in an application such as the present one. These include the following, all of which are applicable to this case:

1. The access must be both meaningful and beneficial to the child: see s. 143.1.2(6)(b) of the CFSA.

2. Although this wording is similar to the wording set out in s. 59(2.1) of the CFSA[^5], as noted above, the interests being protected in an opennesss case are entirely different from those considered for access after Crown wardship. Because of this, the fact that access was granted after Crown wardship does not mean that openness would be meaningful and beneficial after adoption: see N.P.T.S. v. Catholic Children’s Aid Society of Toronto, 2016 ONCJ 242 at para. 27.

3. Openness cannot be confused with access. Openness is a different form of contact from access as the relationship that previously existed between the child and his or her biological parents now becomes vested in the adoptive parents. Openness is therefore not for the purpose of maintaining the original parent child relationship: see N.P.T.S. at paras. 32 and 34. The relationship being maintained must be such as will not undercut the adoptive parents’ home or stability of that home: see s. 145.1.2(5) of the CFSA and N.P.T.S. at paras. 36 and 38.

4. The focus on “meaning and beneficial” has to be 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: see Re Proposed Openness Order for S.M., 2009 ONCJ 317 at subparagraph (2) of para. 17.

5. The measure of the best interests of openness is the “now relationship” and not a future relationship. As stated by Katarynych J. in Re Proposed Openness Order for S.M., at para. 17(6), “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.” [emphasis hers]

6. Deference must be given to the views of the prospective adoptive parents. This is because openness must be concerned with the success of the proposed adoption and the comfort level of the adoptive parents with the proposed contact with the birth parents is therefore paramount: see Native Child and Family Services of Toronto v. J.E.G., 2014 ONCJ 109 at para. 59 and L.M. v. Valoris enfants et adultes de Prescott-Russell, 2014 CSON 2921 at para. 78.

Discussion

[35] As noted above this motion was argued on the basis that an answer had been filed by K.R. requesting openness to the child. It is the court’s understanding that the openness requested would be similar to the access set out in the Crown wardship order, being three face-to-face visits per year subject to a provision that if K.R. missed two visits in a row, further visits would not be permitted without a demonstration of K.R.’s mental health stability to the adoptive parents. There was also a right for K.R. to attend at the hospital in the event of a stay in excess of three weeks or a life threatening event.

[36] Mr. Manning argued that an openness order would be contrary to B.R.’s best interests. He relies upon paragraphs 1, 2 and 5 of s. 136(2) of the CFSA. In addition, delay is an issue under para. 9 as a trial would result in, of course, necessary delay in the adoption process.

[37] As noted above, B.R. has had many different physical and mental challenges throughout his short life. It is clear that the proposed adoptive parents (previously the foster parents) have been significantly involved in B.R.’s care. Numerous hospital visits have been made to the Hospital for Sick Children because of the child’s failure to thrive, his neurofibromatosis Type 1 condition,[^6] a heart murmur, inoperable brain tumours and a seizure disorder. There have also been appointments for physiotherapy and speech therapy as well a heart specialist in Orillia. K.R. herself acknowledges in her affidavit that she consented to Crown wardship because she was aware that she could not meet B.R.’s medical needs.

[38] B.R. is also developmentally delayed. He is over two years old and is only able to utter a few words and is not capable of being toilet trained. His memory is limited and he is only now walking. He has a permanent feeding tube and he is unable to feed himself.

[39] All of these concerns make it apparent that if this adoption fails, B.R. is probably not an adoptable child. If the adoption fails, B.R. will end up in permanent foster care.

[40] Therefore in this case, the comfort level of the adoptive parents, who presently make great sacrifices to meet B.R.’s health needs, is paramount. And it is apparent that the comfort level of the adoptive parents is challenged by K.R. and her desire to remain involved in B.R.’s life.

[41] This is partly because it is apparent to me that K.R. cannot understand that her role in B.R.’s life has changed. She cannot understand that once the adoption is confirmed, she no longer stands in the place of B.R.’s mother. B.R.’s new mother will be the adoptive mother and K.R. will be left with a secondary role in B.R.’s life. It was most telling that, on one of K.R.’s numerous outbursts in the court during argument of this motion, she shouted out while Mr. Manning was making submissions that, “I am [B.R.]’s mother!”

[42] K.R.’s limited ability to understand her new role is not her fault. There was ample evidence that she is limited in her ability to understand her place because her cognitive functioning is well below norms. She has been assessed on a number of occasions and she was in the extremely low percentile ranges in various cognitive functioning abilities.

[43] She also has difficulty in self-control. This is manifested in outbursts which made it difficult to manage her in the courtroom; on at least on one occasion I had to threaten to remove her as a result. Although Olivia Forest, K.R.’s worker with the David Busby Street Centre, suggests that these outbursts are “beyond her control and harmless”, the statement that she was B.R.’s mother in court during one of those outbursts indicates that they may, in fact, be quite harmful. Her ability to self-manage also resulted in assaultive behaviour in front of B.R.’s father when she knocked his hardhat from his head. Although she was not convicted of assault in respective of this incident, there is a serious concern that K.R. would also not be able to manage her behaviour with the foster parents. It is also concerning that this will cause ongoing stress to the foster parents and may impair the foster placement in the future. The court must bear in mind that, once the adoption takes place, the Society is no longer in charge of access, and direct contact between the foster parents and K.R. might very well be inevitable. Because of K.R.’s volatility, the fears of the foster parents if K.R. knows who they are and where they live are well founded and reasonable.

[44] In K.R.’s Affidavit sworn on July 21, 2017, she explains some of the challenges that she had over Christmas of 2016. I do not need to go into the details of the problems that K.R. had at that time; however it is extremely concerning when K.R. speaks of the reason that she wishes to continue have contact with B.R. In paragraph 3 of that Affidavit she speaks of the stress that she has around each Christmas and says in paragraph 4:

Having some contact with my own children would alleviate the stress I feel at Christmas. The openness agreement that form part of the Crown wardship was designed to assist me with coping with Christmas.

[45] This of course, cannot be the basis for an order for openness to B.R. (or access to B.R. for that matter after Crown wardship). That is because the access belongs to the child and is, in fact, stated to belong to the child in the Crown wardship order. The access is intended to meet the best interests of the child and not those of K.R. To maintain an openness order to alleviate K.R.’s stress during the Christmas season does not go to the best interests of B.R. as I am directed to do under s. 145.1.2(6)(a) of the CFSA.

[46] As well K.R. has not exercised the access that she was given after the birth of the child. According to the material filed, which is uncontradicted by K.R., she has only seen B.R. 15 times since he was born over two years ago. Since the Crown wardship order she missed her December visit (notwithstanding the fact that K.R. could have exercised that access to relieve her own stress over the Christmas season) and only had a visit when this matter was returned to court in April, 2017 and when she requested access. My impression is that if the matter had not been returned to court, K.R. would have missed the April visit as well. She seems to wish to keep openness in place for the purpose of it appearing to remain in place rather than for the purposes of maintaining actual contact with B.R. which has been sporadic and occasional.

[47] I also have to take into account B.R.’s special needs under paragraphs 1 and 2 of of s. 136(2) of the CFSA. Apparently the foster parent was concerned when B.R. recently had to go to Sick Kids Hospital in Toronto and K.R. insisted that she had a right to attend at Sick Kids Hospital. It is unclear from the materials whether the visit for surgery at Sick Kids was for a life threatening event or was an excess of three weeks which would have permitted K.R. to attend at the hospital. In any event, Ms. S., B.E.S.’s spouse told the adoptive mother that K.R. was “thinking about going to the Hospital for Sick Children and getting B.R.”. On the other hand, K.R. states that she does “not remember making any threats of finding B.R. and running with him.”

[48] And K.R.’s version of what occurred may be true. However, what is more important is not whether the threat was made, but the fact of this interaction and the resulting stress to the adoptive parents who were only trying to meet B.R.’s medical needs. This interaction illustrates that the difficulties caused by contact between K.R. and B.R.’s biological father and family combined with contact between B.E.S.’s family and the foster parents. This may not in fact be K.R.’s fault. She may in fact have been innocent and never made a threat to take B.R. away with her. However the stress remains largely because K.R.’s volatility and her inability to manage her emotions with B.E.S. or his partner. Were openness granted and were K.R. to know where the foster parents were, the fears of K.R.’s intentions and actions would remain and would threaten the adoptive placement.

[49] The court cannot sanction this situation with an openness order. As noted above B.R. has significant special needs and these proposed adoptive parents have gone beyond any expectations in dealing with those needs. It is obvious that they love B.R. and wish to parent him. If this adoption fails it is unlikely that B.R. with this significant list of needs would be adoptable or that another adoptive home could be found. It is essential to B.R.’s best interests that the adoption succeed.

[50] Ms. Lyons-Batstone argued on behalf K.R. that a trial was necessary for two reasons. Firstly, she said that a trial was necessary because of K.R.’s understanding that the Crown wardship access would later be reflected in the adoption openness order. Second, she argues that the future effects of sibling access must be explored through expert evidence or otherwise in a trial.

[51] Respecting the first point, it is clear from the Crown wardship order that the foster parents were the proposed adoptive parents. The order contemplates the adoption as it speaks of email contact between the mother and the “adoptive parents”. However as noted numerous times above, the purposes of Crown wardship as opposed to the purposes of openness are completely distinct. Openness has to be with a view to the success of the adoptive relationship. I am extremely concerned that the inability of K.R. to understand her place with the child or the fact that she is no longer the “mother” of the child means that continued contact after adoption not be in the best interests of the child or permanency for the child and would discourage the adoptive relationship between the child and his new family. K.R.’s understanding of what was intended when she consented to the Crown wardship order is secondary to the best interests of the child as defined in s. 136(2) of the CFSA or the issue of whether access is beneficial and meaningful within the meaning of s. 145.1.2.(6) of the CFSA.

[52] It is apparent to me as noted above that, considering B.R.’s special needs and considering the concerns of the adoptive parents expressed in the affidavit of the adoptive mother, that continued face-to-face contact could very well impair the adoptive relationship. The views of the adoptive parents must be deferred to especially when, once the adoption takes place, the Children’s Aid Society will no longer be involved in arranging or supervising access. The adoptive parents, whose interests are being protected through the adoption, were not signatories to the Crown wardship order, and had no input into the terms of that order. Considering the sporadic history of access to-date and considering K.R.’s volatility and inability to know her place in the adoptive relationship, I do not find that access is beneficial and meaningful and this overrides completely any issue of the intentions of the parties when the original agreement regarding Crown wardship was entered into.

[53] This may very well be unfair to K.R., as I believe that she understood that the access agreed to at the time Crown wardship was agreed to would continue in an openness order. However, the child’s best interests and protection of the adoption process trumps the respondent mother’s contractual understanding and, for that matter, fairness to K.R. and the rights of K.R. arising from the consent Crown wardship order, and I do not need a trial to tell me this.

[54] The secondary issue is K.R.’s argument that it will not be in B.R.’s best interests to differentiate between himself and his brother E.S. who will continue to have access to K.R., considering that there will be sibling access in the future.

[55] However as pointed out by Katarynych J., it is the “now” of the relationship that is the measure of both benefit and reasonableness. Katarynych J. stated at para. 17(5) of her decision in Re Proposed Openness Order for S.M. that “the value of the relationship to a child inaccessible in the now maybe be crystal clear in hindsight.” She later says that “even though a true measure of benefit of meaningfulness of a relationship to a child may require the unfolding of time the adjudication cannot be rooted in an anticipation or eventuality.” She states that there is “no discretion to make an order that gives opportunity for future benefit or future meaningfulness to the child.” I agree with this statement.

[56] As well, the incident that occurred over B.R.’s attendance at Sick Kids, and the supposed statement made to Ms. S. by K.R. speculating about coming to Sick Kids and removing the child, leads me to believe that the present situation and access order may very well result in stress to the adoptive parents without any corresponding benefit to B.R. notwithstanding the fact that K.R. presently has access to both of her children.

[57] Taking this into account, the suggestion that expert evidence may be necessary to review the issue of sibling contact and the differentiation between children when there is sibling contact in their relationship to a parent is speculative at best. This being considered, the value of leading that evidence at trial would be outweighed by the prejudice to the child resulting from the delays required for a trial of that issue. As pointed by Wildman J. on June 26, it is urgent that the child have permanency and that the adoption go through as soon as possible. This being considered I do not believe that a trial is warranted on the issue of future sibling access and the effect of future parental access to one sibling while the other does not have that benefit. This is a not a genuine issue for trial within the meaning of Rule 16.

Conclusion

[58] Accordingly, it is my finding that the respondent mother has not raised a genuine issue for trial and any claim by the respondent mother for openness is therefore dismissed.

[59] The foster parents have offered an email address and continued contact by email on strict terms: see paragraph 24 of the Affidavit of S.E. sworn July 5, 2017. Mr. Manning in submissions requested no openness order. However I am going to make an openness order on the terms suggested by the foster mother; there is no reason why this order should not be made.

[60] There will therefore be an openness order on the terms that the adoptive parents will establish an email address from which they shall send quarterly updates to the biological mother regarding B.R. and to which K.R. can send information. Emails from K.R. need not be responded to by the adoptive parents more than once every two months.

[61] Otherwise the Children’s Lawyer is permitted to withdraw the claim for openness to K.R. and any claim by K.R. to openness beyond the openness order made herein is dismissed.

McDERMOT J.

Date: September 12, 2017

[^1]: R.S.O. 1990, c. C.11

[^2]: Other than email access offered by the foster mother in her affidavit.

[^3]: O. Reg. 144/99

[^4]: Children’s Aid Society of Toronto v. R.C., 2016 ONCJ 335 at para. 123.

[^5]: Access in the case of Crown wardship.

[^6]: a condition characterized by changes in skin colouring (pigmentation) and the growth of tumors along nerves in the skin, brain, and other parts of the body.