COURT FILE NO.: FS-16-950
DATE: 2018 11 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Family and Children’s Services of Guelph and Wellington County, Applicant (Respondent on Appeal)
AND:
J.M., Respondent (Appellant on Appeal)
J.B., Respondent (Respondent on Appeal)
BEFORE: Barnes J.
COUNSEL: A. Circelli, for the Applicant
M. Lannan, for the Respondent J.M.
T. Flaherty, for the Respondent J.B.
G. Sun, Children’s Lawyer
HEARD: February 15, 2018
ENDORSEMENT
INTRODUCTION
[1] On November 15 and 16, 2016, Justice Caspers of the Ontario Court of Justice, noted the Appellant in default and ordered that the Appellant’s daughter S.B. and son S.B. be placed as wards of the Crown without access to their biological parents. On August 14, 2017, Justice Caspers dismissed a Motion by the Appellant to set aside her default orders.
[2] The Appellant appeals the August 14, 2017 order of Justice Caspers. The Appellant only appeals the portion of the order granting her no access to her children. After considering material filed and the submissions of counsel, I dismissed the appeal. These are my reasons.
DISCUSSION
[3] The Appellant submits that the motions judge erred in her application of s. 59(2) (2.1) of the Family and Children Services Act [now repealed] (the Act). According to the Appellant, the motions judge committed these errors: (1) failed to apply the correct test in deciding whether access between the Appellant and her children was “meaningful and beneficial” under s. 59(2)(2.1) of the Act; (2) was in error in concluding that the court was prohibited from making an access order; (3) ignored the perspective of the daughter S.B.; (4) did not give adequate consideration to the fact that the Appellant and her children loved each other and historical access between the Appellant and the children had been beneficial to the children; and (5) failed to properly consider that it was contemplated by all the parties (including the adoptive parent), that access between the Appellant and the children would continue after adoption.
[4] The crux of the Appellant’s objection to the motion judge’s decision to deny access is well summarized in paragraphs 50 to 52 of her factum as follows:
(50) If the Learned Motions Judge knows that the Appellant will have access to her children through extended family members and does not order that not to occur, then the conclusion can be drawn that the access between the children and the Appellant is in their best interests and should be ordered.
(51) There was no evidence presented at the trial or the motion that would indicate the adoption would not happen or would be hampered if an order for access was made.
(52) The Society supports openness and understands its importance to the children. They understand that the Appellant mother is free to attend on weeks that her family has the children.
[5] The Respondents, Family and Children’s Services of Guelph and Wellington County and the Office of the Children’s Lawyer (OCL) take the position that the motions judge correctly applied s. 59(2)(2.1) of the Act and that the Appeal should be dismissed.
[6] The OCL clarified, its description of the daughter S.B’s stated preference to cancel the adoption and remain with the Appellant. The OCL explained that the daughter S.B.’s preferences were premised on an assumption that her mother had stopped her consumption of drugs. Daughter S.B. assumed that the Appellant’s drug addiction was over. Under that premise, daughter S.B. had expressed the intention to continue to monitor her mother’s drug use herself. The OCL explained that a circumstance where a child felt she needed to monitor and control her mother’s return to drug use and addiction is not in the best interest of the child.
[7] Subsection 5 9 (2)(2.1) of the Act provides:
(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated. 2006, c.5, s. 17(2)
(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 opportunity for adoption.
[8] The correct approach to the “meaningful and beneficial” analysis under s. 59(2.1) (a) of the Act is articulated by Charney J. in Children and Family Services for York Region v. K.O. 2016 ONSC 225, at paragraphs 59 – 60 as follows:
Section 59(2.1) requires that the relationship must be both beneficial and meaningful, and must be beneficial and meaningful at the time of the hearing, “it is the present benefit and present meaningfulness” not the opportunity for future benefit or meaningfulness. Finally, “even if there are some positive aspects to the relationship between the parent and the child, that is not enough – it must be significantly advantageous to the child.
Other courts have observed that “the court should be conscious of the fact that deficiencies in a parent that might be a concern when the issue is whether to return a child to that parent’s care may not be a concern (or may be a lesser concern) when the issue is access” (Children’s Aid Society of Toronto v. LC, 2013 ONCJ 3 at para. 38). See also Children’s Aid Society of Niagara Region v. J.C. 2007 8919 (ON SCDC), [2007] OJ No 1058.
[9] The motions judge correctly summarized how s. 59(2.1) of the Act applied in this case as follows:
With specific reference to this case, unless Ms. J.M. can establish to the court’s satisfaction that the relationship with her children is beneficial and meaningful to S. and S. and that the ordered access will not impair their future opportunity for adoption there will be no access: Reasons for decision at paragraph 60.
[10] The motions judge, in her thorough reasons, considered the children’s and the Appellant’s affection for each other; the Appellant’s positive historical and present access to the children through the maternal grandmother; and the preferences of both children. After careful consideration, the motions judge concluded that despite the Appellant’s pleasant visits with her children, she could not find that the Appellant had created “the groundwork for an argument that the contact was “significantly advantageous” such that it reaches the threshold of “beneficial” and “meaningful”.
[11] The correct test is “significantly advantageous” not simply “advantageous”. The motions judge applied the correct test to the evidence, which included instances when the drug addiction of both parents had deleterious impacts on their ability to be effective parents to their children. The conclusion she reached was reasonably available to her on the evidence and thus there is no basis to interfere with her conclusion.
[12] I agree with the Appellant that the motions judge did not apply the correct test, for assessing the impacts of an access order on future prospects for adoption, as prescribed, by subsection 59 (2.1) (b) of the Act.
[13] The motions judge identified the correct test at paragraph 60 of her reasons for decision as follows: that “the ordered access would not impair their [the children’s] future opportunity for adoption”. However, in considering the adoptability of the children, the motions judge wrote at paragraph 69 of her reasons for decision:
The Society’s evidence is that both children are adoptable, and that there is a reasonable likelihood that they can be adopted together as a sibling unit by the current foster parent. None of the parties has challenged that evidence that would cause me to doubt its reliability. And because of this the court is prohibited from making an access order. [Emphasis added]
[14] The motions judge was in error in concluding that because the adoption plan contemplated the adoption of both children by the same adoptive parent, she was prohibited from making an access order. The motions judge did not resolve the issue of whether an access order will “impair adoptability “as mandated by s. 59 (2.1) (b). When the reasons of the motions judge are read as a whole, it is apparent that she was alive to the correct test, however, failed to provide further reasons to address this issue.
[15] In addition, the motions judge was alive to the fact that the parties contemplated supervised access for the Appellant through the maternal grandparents. The affidavit of the adoptive parent L.H. was considered by the motions judge. In that affidavit L.H. expressed no concern about the ability of the maternal grandparents to supervise the Appellant’s access to the children.
[16] When L.H.’s affidavit is read as a whole, it is reasonable to conclude that the inclusion of an access order mandated by the court would have impaired adoptability. It is reasonable to infer that what the adoptive parent contemplated was an open, non-court mandated, flexible supervised access regime under the auspices of the maternal grandparents. L.H. clearly did not contemplate court mandated access to the Appellant who she did not trust. L.H. questioned the Appellant’s parenting skills as not in the best interests of the children.
[17] Thus, there is a basis on the record, to conclude that an access order will impair the opportunity for the children to be adopted. A reconsideration of this issue in the court below will yield the same result.
CONCLUSION
[18] The appeal is dismissed. Although the Appellant was unsuccessful in the ultimate result, the legal error she identified had merit and therefore each party shall pay their own costs.
Barnes J.
Date: November 7, 2018
COURT FILE NO.: FS-16-950
DATE: 20181107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Family and Children’s Services of Guelph and Wellington County
AND:
J.M & J.B.
BEFORE: BARNES J.
COUNSEL: A. Circelli, for the Applicant
M. Lannan, for the Respondent J.M.
T. Flaherty, for the Respondent J.B.
G. Sun, Children’s Lawyer
ENDORSEMENT
Barnes J.
Date: November 7, 2018