Court File and Parties

COURT FILE NO.: C285/15-4 DATE: March 28, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

RE: J.N.-L., applicant child AND: C.S.-N., A.S., C.L., J.N. and the Children's Aid Society of London and Middlesex, respondents

BEFORE: MITROW J.

COUNSEL: Patricia Miller for the applicant child, J.N.-L. Christopher Knowles for the respondent children, C.S.-N. and A.S. Christina Ninham for the respondent child, C.L. Bobbi-Lynn Sands-Keller for the respondent child, J.N. Randy Hammond for the Children's Aid Society of London and Middlesex

HEARD: March 1, 2019

Endorsement

[1] The issue raised in this openness application is whether a parent, who has not signed a consent to a final openness order and who is the custodial parent or primary caregiver of a child, is entitled to receive notice of an openness application when the order sought in the openness application includes a provision for openness arrangements between that parent’s child and another person or persons. This issue being raised may be described as one of due process and a parent’s right to have notice of, and participate in, a proceeding that may affect his or her child.

[2] A related issue would include a situation similar to the foregoing, but where the parent is not the child’s custodial or primary caregiving parent.

[3] In the case at bar, the applicant, and all the respondents (with the exception of the Children's Aid Society of London and Middlesex (“the Society”)) are children and are siblings. The children are represented by counsel appointed by the Office of the Children’s Lawyer. The applicant child was born in 2014. Regarding the respondent children: C.S.-N. was born in 2008; A.S. was born in 2007; C.L. was born in 2012; and J.N. was born in 2016.

[4] There is conflicting information regarding J.N. The spelling of his first name contained in the title of the issued openness application is different than shown in the access provisions of J.N.-L.’s amended Crown wardship order. Also, this same order shows J.N.’s year of birth as 2016, whereas the openness application refers to his year of birth as 2008 and also 2017. These reasons use the year of birth as shown in the aforesaid Crown wardship order.

[5] The Society is requested to file an affidavit that has appended to it a copy of J.N.’s birth certificate. If required, the title of the application should be amended to reflect the correct spelling of this child’s name.

[6] The parties seek a final openness order pursuant to a consent signed, not only by all the parties, but signed also by all the other “stakeholders,” including the father of C.S.-N. and A.S., the anticipated adoptive parent of the applicant child and the anticipated adoptive parent of the child, C.L.

[7] J.N. is in the care of his mother, K.N. (“Ms. N.”); however, Ms. N. has not signed the consent, nor was she served with a copy of the openness application. Ms. N. also is the mother of A.S. and C.S.-N.

[8] On January 11, 2019, I released the following endorsement [1]:

(1) On January 10, 2019, I adjourned this openness application to January 17, 2019 before me with the proviso that I would review the consent and draft order in the meantime, and that this court date would be vacated if I signed the draft order.

(2) On viewing the consent filed, and the court file, I do require some submissions on the issues raised below.

(3) Firstly, the evidence on this openness application is the executed form 34M.1 (the Consent to Openness Order under s. 196 or s. 197 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”)). This would be analogous to an agreed statement of fact.

(4) The consent is not signed by the mother, K.N. (“Ms. N.”). The issue, in my view, subject to hearing submissions, is whether it is possible to proceed “on consent” or on an “unopposed” basis without Ms. N.’s signature on the consent.

(5) Subject to hearing submissions, the fact that Ms. N. was apparently served with the motion for OCL appointment is not the same as being served with the application.

(6) Regarding the five children who are parties in the openness application, the applicant child, and the respondent child C.L., are Crown wards. The remaining three children are all respondents and they are not Crown wards.

(7) The child J.N. is in the care of his mother, Ms. N., pursuant to a supervision order with the Chatham-Kent Children’s Aid Society.

(8) The children, C.S.-N. and A.S., are in the custody of their father, B.S. (“Mr. S.”), pursuant to an order under s. 57.1 of the now repealed Child and Family Services Act, R.S.O. 1990, c. C.11. Mr. S. has signed the consent.

(9) Ms. N., it appears, also is the mother of C.S.-N. and A.S..

(10) The openness application is in relation to the applicant’s siblings. Three of the siblings are children who remain in the care of a parent.

(11) Dealing first with J.N., the proposed openness order will affect J.N. J.N. is in Ms. N.’s custodial care; yet, it appears that Ms. N. has no opportunity to participate in or defend the openness application because it was not served on her. She appears to have no say in the matter.

(12) Section 196(2) of the CYFSA refers to the persons who should be given notice of the openness application. This section does not appear to be exhaustive.

(13) The issue then is whether Ms. N. should be added as a party (see r. 7(5) of the Family Law Rules), or at least be served with the application.

(14) The same arguments can be raised regarding Ms. N.’s role as the mother of A.S. and C.S.-N., even though those children are in Mr. S.’s custody. It is not clear on the material filed whether Ms. N. exercises access to A.S. and C.S.-N.

(15) Unless Ms. N. signs the consent or, failing same, unless she is added as a party and/or served with the application, it would not appear that she would be bound by the openness order.

(16) There is also the question as to whether Chatham-Kent Children’s Aid Society has any role in the openness application given that the openness order relates to J.N., who is still subject to a protection order in a proceeding where Chatham-Kent Children’s Aid Society is a party. For example, any order sought affecting J.N. in the protection proceeding would require service on the Society or, if on consent, the Society would need to sign the consent.

(17) Finally, there is little if any evidence regarding J.N.’s father. Is he entitled to notice of the openness application or, alternately, should he be signing the consent?

[9] This matter next came before me on March 1, 2019. At that time, submissions were made by all counsel.

[10] It was the position of the applicant that it was not necessary to serve Ms. N. as she was not a person entitled to notice of the openness application.

[11] This openness application proceeds under s. 196 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. Section 196(2) deals with notice:

196(2) A person making an application for an openness order under this section shall give notice of the application to,

(a) the society having care and custody of the child;

(b) if someone other than the child is bringing the application, the child; and

(c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made.

[12] The applicant was made a Crown ward pursuant to a final order made September 12, 2017. That order also provided that the applicant shall have access to all four respondent siblings named in the current openness application “as may be arranged from time to time by the children’s respective caregivers.”

[13] Affidavit evidence filed on behalf of the respondent children, C.S.-N. and A.S., indicates that Ms. N. was inconsistent in having access to C.S.-N. and A.S. between 2015 and 2017 and that she has not had contact with them since November 2017. However, Ms. N. has not had an opportunity to respond to the accuracy of this evidence.

[14] The openness provisions sought in the draft order include that J.N.-L. expressly retains a right of access to her brother J.N., and that J.N. may participate in all sibling visits to be supervised by caregivers and that Ms. N. may not attend access visits that J.N. attends.

[15] The s. 57.1 order awarding custody of the children, C.S.-N. and A.S., to their father Mr. S. was dated August 11, 2016 and was silent as to Ms. N.’s access.

[16] It was also the applicant’s submission that Ms. N. should not be served with the openness application because, as she is not a party, service of the openness application on her raises a confidentiality issue and is a violation of the child’s rights. It was suggested that this is the position taken by the Office of the Children’s Lawyer in openness applications.

[17] The confidentiality argument, it seems, is weakened somewhat by the fact that there appears to be some confidential information included in the consent form, which is signed by non-parties.

[18] It became apparent during the course of submissions, given the arguments being raised, that the court would benefit from receiving facta from the parties.

[19] Some submissions were made expressing concern that a delay in completing the openness application may in turn delay finalization of the adoption for the two children who are Crown wards. It is noted, however, that the making of an adoption order need not await the completion of an openness application: see ss. 196(6) and (8).

[20] The order below also includes a requirement to serve the Attorney General of Ontario. Although no constitutional issue was raised, submissions made by the applicant included that there was a problem with the legislation, the inference being that the Child, Youth and Family Services Act, 2017 did not contemplate, or provide for, the issue raised in this proceeding.

[21] There also was a submission made that the court consider resorting to its parens patriae jurisdiction to make an appropriate order in the case at bar. If any party intends to pursue a parens patriae argument, then that party’s factum should articulate the basis for such a position supported by jurisprudence.

[22] I make the following order:

(1) This matter is adjourned before me, to be spoken to only, at 10 a.m. Thursday, April 18, 2019.

(2) The purpose of the above is to set a date for argument. All counsel need not appear, and counsel appearing can speak to the matter as agents for counsel not appearing. Counsel should contact the trial coordinator in advance to canvass dates acceptable to all counsel.

(3) Each party shall file a factum. Without limiting the right of any party to raise any relevant issue, the factum of each party shall include the following issues:

a) Is the list of persons who are entitled to notice of the openness application pursuant to s. 196(2) of the Child, Youth and Family Services Act, 2017 exhaustive?

b) Should Ms. N. be served with a copy of the openness application, given that the order sought on the openness application affects J.N., who is in Ms. N.’s care?

c) Should the court deem it appropriate, is there anything in the Child, Youth and Family Services Act, 2017 that precludes the court from adding Ms. N. as a party? Can Ms. N. be added as a party pursuant to r. 7(5) of the Family Law Rules?

d) If Ms. N. is entitled to notice of the openness application, or to be made a party, should Ms. N.’s participation be limited only as it pertains to J.N.’s involvement in any openness provisions?

e) What are answers to (b), (c) and (d) if considered only in the context of Ms. N.’s role as the non-custodial mother of C.S.-N. and A.S.?

f) Are the following entitled either to notice of the openness application or to be made parties:

i. the Chatham-Kent Children’s Aid Society, assuming that J.N. is placed in Ms. N.’s care and custody subject to the supervision of the Society?

ii. J.N.’s father?

(4) By no later than April 5, 2019, the Office of the Children’s Lawyer shall serve a copy of these reasons on counsel for the Attorney General of Ontario, and file proof of service.

(5) The Attorney General of Ontario is invited to make written submissions and/or oral submissions. If the Attorney General wishes to make oral or written submissions, a notice to that effect shall be served on all counsel by regular mail and filed in the continuing record by April 16, 2019.

“Justice V. Mitrow” Justice V. Mitrow Date: March 28, 2019

[1] The original endorsement used the spelling of J.N.’s first name as shown in the title of the openness application, but for the purpose of these reasons was changed as per J.N.-L.’s amended Crown wardship order.