COURT FILE NO.: FS-17-0024-00
DATE: 2018-10-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A. R.
M. Cupello, for the Applicant
Applicant
- and -
M. B. and E. B.
D. Taylor, for the Respondents
Respondents
HEARD: September 18, 2018, at Fort Frances, Ontario
Mr. Justice T.A. Platana
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Decision On Application
Overview
[1] The Applicant, A.R., has brought an application for access to her child, A.L.R., now named A.B. pursuant to an adoption order. A.B. was adopted by the Respondents on February 19, 2015. The Applicant is the biological mother of A.B., born […], 2010. The Respondents are the Applicant’s biological mother, M.B., and M.B.’s second husband, E.B.
[2] To reflect the fact of adoption, I will refer to the child as A.B. throughout these reasons.
[3] At a Trial Management Conference for the application, one of the issues was whether the Applicant could apply for access. The Trial Management judge directed this issue to be heard and framed the issue as follows:
Does the Applicant have standing to apply for access to her natural child, [who] was adopted, in light of the provisions of s. 160(1) of the Child and Family Services Act?
[4] This is the sole issue before me.
Background
[5] The parties agree on certain facts. On or around March 2012, the Applicant was experiencing mental health issues. The Respondents began caring for the child. On April 13, 2013, Kenora-Rainy River Child and Family Services (“KRRCFS”) entered into a safety contract with the Applicant, placing the child in the care of the Respondent, M.B., until further assessment could be made by the KRRCFS.
[6] On May 30, 2012, A.R. signed a Temporary Care Agreement placing the child in the temporary care of KRRCFS for a ten month period with A.B. remaining in the care of the Respondent.
[7] On April 9, 2013, an Order was made on consent that A.B. be placed in the temporary care and custody of M.B.
[8] On July 3, 2013, A.B. became a Ward of the Crown on consent “with access to her biological mother.”
[9] On February 19, 2015, M.B. and E.B. adopted A.B. The Notice of Placement for Adoption was served on the Applicant. She made no submissions as to access or openness. The Notice of Termination of Access advised her that access would be terminated unless she sought an openness agreement or order, which she did not do. The Adoption Order contained no provision for access.
[10] The Applicant states that she consented to the adoption “on the understanding that I would be able to continue to have a relationship with [A.B.]” The Applicant originally had access to A.B. both prior to and subsequent to the adoption. The Respondents have now significantly reduced the number of access visits.
[11] In July 2017, the Applicant served the Respondents with this court application for access. Upon being served, the Respondents cut off access, and there has been no access since.
The Legislation
[12] Section 160(1) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”), repealed and replaced by s. 219 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, states:
160 (1) Where an order for the adoption of a child has been made under this Part, no court shall make an order under this Part for access to the child by,
(a) a birth parent; or
(b) a member of a birth parent’s family.
[13] Mr. Cupello for the Applicant submits that the Application is brought within s. 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”). Section 21(1) states:
21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
[14] Mr. Cupello argues that the Applicant is “any other person,” and, therefore, entitled to bring the application.
[15] Mr. Taylor for the Respondents, argued by co-counsel Clare Brunetta, submits that, in order to satisfy the definition of “any other person,” a threshold test based on the best interests of the child requires that s. 21 be used only in rare and exceptional circumstances. Counsel for the Respondents argue that these circumstances are not present in this case so as to permit the Applicant to rely on s. 21 as “any other person.”
Applicant’s Position
[16] Mr. Cupello relies on J.A. v. J. B., 2011 ONCJ 726, 211 A.C.W.S. (3d) 358, where the court, upon reviewing the jurisprudence, established that there are three exceptions to the general rule that birth parents cannot have post-adoptive access:
i. Where the natural parent establishes a relationship with the child after the adoption is made: C.G.W. v. M.J. et al. (1981), 1981 CanLII 1644 (ON CA), 34 O.R. (2d) 44 (ONCA);
ii. Where assurances were given during the protection proceeding by the adoptive parents that there would be continued contact: H.(J.) v. G.(B.), 1993 CanLII 3046 (ON CJ), [1993] 38 A.C.W.S. (3d) 1189 (ONCJ); and
iii. Where there is an existing order for a non-ward child adopted by a collateral relative: J.A. v. J.B.
[17] Mr. Cupello acknowledges the Applicant is obligated to present a prima facie case by presenting a minimal factual foundation focusing on the best interest of the child. Mr. Cupello submits that the Applicant’s circumstances meet the first and second exceptions. He acknowledges that, in C.G.W., the Ontario Court of Appeal established a restrictive threshold test requiring the birth parent to show a post-adoptive relationship with the child before the court would consider granting custody or access on the merits. He notes the court’s comment that, where the Applicant for access is not a stranger, such applications should not be disposed of before considering the merits of the case.
[18] He submits that the Applicant has had access post-adoption, which she exercised until the Respondents terminated her access in July 2017. He points to the materials submitted which show that the child refers to the Applicant as “mom.”
[19] Mr. Cupello submits that the Applicant’s affidavit filed states that the Applicant consented to the adoption within her family “on the understanding” that she would continue to be able to have a relationship with the child and that she would receive increased access once her psychological condition improved. He argues that the material filed now demonstrates that she has taken numerous steps to improve her mental health and her lifestyle.
Respondents’ Position
[20] Mr. Brunetta acknowledges s. 21 of the CLRA, but submits that the Applicant does not fit within the exceptional circumstances prima facie test which permits the Applicant to be considered “any other person.” Mr. Brunetta submits that the relationship between birth mother and child has not changed post-adoption from what the limited relationship was pre-adoption and before consent was given.
[21] He points out that J.A. v. J. B. established that s. 21 should only be considered in rare and exceptional cases. He references C.G.W. and notes that the Applicant must meet a prima facie test based on what is in the best interest of the child. Mr. Brunetta argues that all of the evidence of best interest is now before the court and that the evidence presented by the Applicant is insufficient to meet that prima facie test. He notes the Applicant presents no evidence beyond that of general medical practitioners who comment on her current health status, but offer no evidence with respect to how access would be in the best interests of the child.
[22] Mr. Brunetta submits that the Applicant has not demonstrated that the Respondents made any clear and unequivocal pre-adoption assurance of access to the Applicant. He relies on the fact there were no access provisions in the adoption order. He relies on the Applicant’s Examination-for-Discovery on April 20, 2018, where she acknowledged that prior to consenting to the adoption she had no understanding with M.B. as to what kind of contact the Applicant would have with the child post-adoption.
[23] He points to the fact that, at the time of adoption, the court considered that, in the best interests of the child, no access provisions were included in the final adoption order. He notes that the Respondent made no request for an openness order or access arrangements at any point during the year-long adoption proceedings. He argues that, by relying on s. 21 now, the Applicant is really just attempting to re-litigate the issue of access which has already been determined.
[24] He submits that the evidence before me is that the child is living in a stable and loving two-parent family where she has been cared for and loved for the past six years. He argues that it is in the child’s best interests to remain in this stable life with her adopted family and remain apart from any further disruption and interference from the biological mother.
[25] He references that, M.B., in her affidavit, acknowledges that because the Applicant is her daughter, M.B. continued to welcome the Applicant into her household as a member of their family after the adoption. The visits were as between M.B. and the Applicant as mother/daughter and not intended as access visits between the Applicant and the child. M.B. stated that her intention was to help the Applicant in her recovery from her mental health and substances abuse issues. She ended the visits when A.B. came home from visits with the Applicant and the Applicant’s family showing hyperactivity and tantrums because of bedtime issues.
Discussion
[26] The specific issue to be decided is whether the Applicant meets the threshold test to be considered as “any other person,” which will give her standing to apply for access. Can she be considered to fit within the “exceptional circumstances” where an order for access should be considered?
[27] I first consider whether the Applicant has established a relationship with the child after the adoption order. The evidence is that, at the time of the order, no access was sought and none was granted. I have considered that the Applicant had had access, however, that access has been what the adoptive parents were prepared to permit and on such terms as they considered appropriate.
[28] The Applicant’s affidavit of December 14, 2017, describes the post-adoption access. It was originally once per month for two hours with additional telephone and Facebook access. The Applicant’s affidavit states that the Respondents never left the Applicant alone with the child. The affidavit shows that in 2016, the Applicant requested monthly weekend visits for herself and for the Applicant’s family on her biological father’s side with such visits to increase gradually over time. There has been no access since July 2017.
[29] The materials filed suggest that the Applicant has made progress with her mental health issues since the child was removed from her care in 2012. She is still on medications, and doctors are monitoring her on an ongoing basis.
[30] The child calls the Applicant “mom,” indicating that A.B. recognizes the Applicant as her biological mother.
[31] The court in C.G.W., at para. 23, stated that, “[i]f … the natural parent establishes a relationship with the child after the adoption order is made then such parent is ‘any person’ and might apply for custody or access to the child.”
[32] In C.G.W., the court considered the example where a child is adopted by the birth mother’s parents and a “close and warm relationship may be established:” at para. 23. The court goes on to say, “[u]nder certain circumstances such a relationship might well give rise to an application for access or custody as the adoptive parents age or an unhappy relationship develops between the child and its adoptive parents:” at para. 23. These are not the circumstances here. In the circumstances of this case, I am of the view that the facts do not establish a relationship sufficient to meet the threshold test, nor do they establish an exceptional circumstance. The reality in this case is that the child was adopted prior to age three. She is now eight years of age and has had minimal contact with the birth mother.
[33] Were there assurances given that there would be continued contact? The adoption order clearly makes no provision for access. Mr. Cupello relies on the Applicant’s “understanding” that she would be able to have a relationship with increasing access. There was no request for access, nor for an openness order. In her Examination-for-Discovery filed as part of the materials, the Applicant acknowledged that, prior to consenting to the adoption, she had no understanding with M.B. as to what kind of contact she would have post-adoption.
[34] I cannot find on the evidence before me that any assurances as to post-adoptive access were given.
[35] When an application for access is brought, the Applicant is obligated to at least establish a prima facie case based on the best interests of the child while considering the purpose of the child protection legislation. While there is evidence before me of the efforts made by the Applicant which show her current medical status and her desire for access, there is no evidence presented by the Applicant which deals with the child’s best interests. The Applicant must present evidence which demonstrates that it is in the child’s best interest to have the Application proceed on its merits. I find no such evidence in this case. The only evidence I have before me is that the court determined that it was in the best interests of the child to make an adoption order.
[36] The general principles established in the case law have consistently focused on the best interests of the adopted child. The interests of adults must be secondary. The circumstances of the child in the adoptive home are to be given clear preference over a request by a birth parent for access. The factors for granting access are limited.
[37] I adopt what was said by L.P. Thibideau, J. in J.A. v. J.B., 2011 ONCJ 726, [2011] O.J. No. 5706, at para. 19:
The integrity and emotional health of the adoptive family takes precedence over the interests of the birth parents seeking to maintain contact with a child. It is the new long-term family relationship in which the child will be emotionally engaged that has a higher value than the maintenance of the old relationship. The adoptive family stands in a superior position to any interest in maintaining previous family ties. The risk of interference with the adoptive placement, the development of emotional ties between the adopting parents and the child, and the risk of sabotaging the adoption placement are pre-eminent considerations. The legislation and the case law severely restrict access for birth parents by way of a simple mandatory prohibition supplemented by the ability of Judges to exercise their statutory or common law discretion to grant access in rare circumstances.
[38] I accept that only in the most exceptional circumstances should the court disturb the solidarity and security of a family constituted by adoption. I do not find that the circumstances of this case are such that the Applicant meets the exceptions, and therefore, she does not have standing to apply for access.
“original signed by” The Hon. Mr. Justice T. A. Platana
Released: October 29, 2018
COURT FILE NO.: FS-17-0024-00
DATE: 2018-10-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
B. R.
Applicant
- and -
M. B. and E. B.
Respondents
DECISION ON APPLICATION
Platana J.
Released: October 29, 2018
/sab