COURT FILE NO.: C285/15-4 DATE: July 25, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

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

BETWEEN:

J.N.-L. Applicant

Counsel for Applicant: Elizabeth McCarty for the Office of the Children’s Lawyer and as agent for Patricia Miller for the applicant child, J.N.-L.

- and -

C.S.-N., A.S., C.L., J.N. and the Children's Aid Society of London and Middlesex Respondents

Counsel for Respondents: Elizabeth McCarty for the Office of the Children’s Lawyer and as agent for Christopher Knowles for the respondent children, C.S.-N. and A.S., and as agent for Bobbi-Lynn Sands-Keller for the respondent child, J.N. Christina Ninham for the respondent child, C.L. Randolph C. Hammond for the Children's Aid Society of London and Middlesex

HEARD: July 3, 2019

MITROW J.

INTRODUCTION

[1] This is an openness application brought by the applicant child, J.N.-L., seeking an openness order with her four siblings, who, along with the Children's Aid Society of London and Middlesex (“the Society”), are the respondents to this application.

[2] The evidence on the hearing of this application is based on affidavit evidence [1] and on the facts summarized in the consents filed as exhibits.

[3] All the parties had sought a final order pursuant to a consent, form 34M.1, filed.

[4] Initially, I declined to make the order because the consent was not signed by K.N. (“Ms. N.”). Ms. N. is the biological mother of all five children, who are parties in this application.

[5] At the time the application was commenced, two of the children were Crown wards; one child was in the primary care of Ms. N. and the other two children were in their father’s primary care. The issue of the consent not being signed by Ms. N. relates to the three children who are not Crown wards.

[6] In the previous endorsement in this case, J.N.-L. v. C.S.-N., 2019 ONSC 1920 (Ont. S.C.J.), I described the issues as follows:

[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.

[7] The parties were requested to file facta to assist the court. Also, the Attorney General of Ontario was required to be served as specified in para. 20 of J.N.-L. v. C.S.-N., supra:

[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.

[8] These reasons focus on the procedural issue of notice as summarized above, rather than on the merits of the openness application. There was no dispute that the openness order sought was in the best interests of the applicant and that the openness order would permit continuation of a relationship that is beneficial and meaningful to the applicant: see s. 196(7)(a) and (b) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”) as to the criteria for an openness order.

[9] For reasons that follow, the relief sought by the applicant is granted but in two separate openness orders.

RELEVANT BACKGROUND FACTS

[10] The applicant, born in 2014, was made a Crown ward in September 2017; the Crown wardship order gave the applicant a right of access to each of the applicant’s four siblings, who are respondents in the application. This order was worded such that the applicant was the “access holder” and the applicant’s siblings were the “access recipients.”

[11] The applicant has special needs and has resided in the same foster placement since she was released from hospital following her birth.

[12] In relation to the four respondent children:

(a) C.L. was born in 2012. C.L. was made a Crown ward pursuant to an order made in September 2017. That order provided that Ms. N. shall have reasonable access to C.L., supervised at the discretion of the Society. The court was advised during the openness hearing that C.L.’s adoption has been finalized.

(b) The children, C.S.-N., born in 2008, and A.S., born in 2007, reside in the care of their father, B.S. (“Mr. S.”). Mr. S. has custody of the children pursuant to a final order made in August 2016 pursuant to s. 57.1 of the predecessor legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11. That order is silent as to access.

(c) The child, J.N., born in 2016, resides with his mother, Ms. N. At the time of the commencement of the openness application, Ms. N. had care and custody of the child pursuant to a supervision order with Chatham-Kent Children’s Services. Subsequently, the supervision order was terminated. There was no evidence as to whether there is a custody and/or access order relating to J.N., nor was there any evidence as to the extent, if any, that J.N.’s father exercises access.

RELEVANT STATUTORY PROVISIONS

[13] The right to commence an openness application was triggered when the Society gave notice of its intention to place the applicant for adoption pursuant to s. 195 of the Act. That section applies because the applicant’s Crown wardship order contained access provisions as discussed earlier.

[14] In the case at bar, only the applicant has a right to commence an openness application because she was the only named “access holder.” An “access recipient,” meaning a person in respect of whom an access order has been made, cannot commence an openness application. This follows from the provisions of ss. 195(1) and (2) and s. 196(1):

195 (1) This section applies where,

(a) a society intends to place a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) for adoption; and

(b) an order under Part V (Child Protection) is in effect respecting a person’s access to the child or the child’s access to another person.

Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. Every person who has been granted a right of access under the access order.

2. Every person with respect to whom access has been granted under the access order.

196 (1) A person described in paragraph 1 of subsection 195 (2) may, within 30 days after notice is received, apply to the court for an openness order.

[15] Some context as to the nature of an openness order needs to be considered. An openness order differs from an access order where, regarding the latter, the parents are mandatory parties.

[16] I concur with the submission of the Office of the Children’s Lawyer (“OCL”) in its factum, at paragraph 26:

The OCL submits that one of the clear objectives of s. 195 and s. 196 was to permit adoption planning for children in extended care who are the subject of access orders. These provisions permit children to move forward in their lives so they may become permanent members of a new adoptive family without sacrificing relationships that are significant and important to the child. In many cases where the adoptive family is of a different cultural background, the openness provisions allow children to maintain important connections to their culture and heritage.

[17] The legislative framework stipulates that the purpose of an openness order is to facilitate communication or maintain a relationship between the child and the child’s biological family or other persons with whom the child has a significant connection, as specified in the Act. An openness order is defined as follows in s. 179(1) of the Act:

179(1) In this part,

“openness order” means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child’s extended family or community, or

(c) in the case of a First Nations, Inuk or Métis child,

(i) a person described in clause (a) or (b), or

(ii) a member of the child’s bands and First Nations, Inuit or Métis communities who may not have had a significant relationship or emotional tie with the child in the past but will help the child to develop or maintain a connection with the child’s First Nations, Inuit or Métis cultures, heritages and traditions and to preserve the child’s cultural identity and connection to community; (“ordonnance de communication”)

[18] Ontario Regulation 155/18 defines openness for the purpose of openness orders and openness agreements:

94. (1) For the purposes of openness orders under Part VIII of the Act and openness agreements under section 212 of the Act,

“openness” includes written, verbal or face to face contact or communication where,

(a) the communication may be direct or indirect and may permit the disclosure of identifying or non-identifying information, and

(b) the frequency of contact or communication may vary from episodic to ongoing.

(2) For the purposes of subsection (1),

“non-identifying information” means information which, when disclosed either alone or in combination with other information, does not reveal the identity of the person to whom it relates.

[19] An openness order is made in the context of a child becoming part of his or her adoptive family. Openness arrangements primarily provide for some contact, whether verbal or face-to-face or through communications between the child and the persons named in the order.

[20] Where an order for extended society care, or an order for Crown wardship under the predecessor Child and Family Services Act, provides for access as in the case at bar, then s. 196(2) applies as to the persons who shall be given 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.

[21] Unlike protection proceedings, it is significant that the statutory notice provisions for an openness application do not extend to a parent who has the primary care of a child where that child is a party to the openness application. This is the situation with Ms. N.; the applicant child seeks an openness order with J.N.; hence, J.N. is a respondent to the application but Ms. N. is not.

[22] While the Society and the OCL concede that the court has a discretion to add Ms. N. as a party, or at least serve her with a copy of the application, all parties urge the court that it is neither necessary nor advisable to add Ms. N. as a party or serve her with a copy of the application.

[23] Although the Society’s submissions as to the court’s jurisdiction to add Ms. N. as a party included parens patriae, inherent jurisdiction, declaratory relief under s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and the liberal interpretation rule in s. 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, I find that it is not necessary to discuss, or resort to, those potential sources of jurisdiction. It is sufficient to rely on the court’s authority to add parties as set out in r. 7(5) of the Family Law Rules, O. Reg. 114/99:

7(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

[24] It should be noted that, although the Attorney General of Ontario declined the court’s invitation to participate in this application, the position of the Attorney General of Ontario was contained in counsel’s letter (marked as an exhibit) stating that s. 196(2) of the Act sets out a “complete list” of the persons who must be given notice of an openness application, but that the court retains discretion pursuant to the Family Law Rules to add parties, where appropriate, and to determine the scope of their participation.

[25] In Children's Aid Society of London and Middlesex v. H.(S.), 2002 O.J. No. 4491 (Ont. S.C.J.), G.A. Campbell J. summarized the factors to be considered before adding parties (in that case grandparents) in a child protection proceeding:

22 Since the court's discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former Rules continue to apply. In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

(i) whether the addition of the party is in the best interests of the child,

(ii) whether the addition of the party will delay or prolong proceedings unduly,

(iii) whether the addition of the party is necessary to determine the issues, and

(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.

23 In P.(J.), [2000] O.J. No. 745 (Ont. S.C.J.), Marshman J. sets out an additional prerequisite for those persons seeking to be added as parties:

... It seems to me that a person should not be added as a party in Child Welfare proceedings unless that person has a legal interest in the proceedings, i.e. an order can be made in their favour or against them. If rule 7(5) is intended to give the Court broad discretion to add parties who have no legal interest in the issues before the Court then that discretion ought be exercised very sparingly. Family Court cases would become unwieldy if Courts exercise a broad discretion to add parties who have an interest in the outcome but who are not legally affected thereby. (my emphasis)

24 Consequently, in addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.

[26] The Court of Appeal for Ontario has referred to the principles for adding parties in child protection proceedings as discussed in Children's Aid Society of London and Middlesex v. H.(S.), supra, noting, at para. 24, that “… it is not necessary for all factors to favour the person seeking party status for the court to add him or her”: A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (Ont. C.A.), at paras. 22-24.

[27] I am in agreement with the submissions of the parties that it is not necessary either to add Ms. N. as a party or serve her with a copy of the openness application. However, an important consideration supporting this conclusion is that, subsequent to the court’s initial refusal to make the consent order, further efforts were made to engage Ms. N., which resulted in Ms. N. signing a separate consent that dealt only with an openness order with respect to the applicant and the child, J.N.

[28] A further consent was prepared that dealt with an openness order between the applicant and her remaining three siblings. That consent was signed by all OCL counsel representing the four children included in the proposed order, the Society, Mr. S. (father of C.S.-N. and A.S., as noted earlier) and the proposed adoptive parents for each of the applicant and the child, C.L.

[29] The present case reflects the usual approach to openness applications followed by the OCL and OCL counsel appointed to represent children in such an application. Generally, efforts are made to engage all stakeholders, including the proposed adoptive parents, and also the custodial parents of any child who is a party to the openness application.

[30] It was apparent from the evidentiary record that much effort was made by the applicant’s counsel to engage initially with all the stakeholders and this included Ms. N. It was clear that Ms. N. was made aware of the openness application and it appears that she was served with the motion to appoint OCL counsel for all of the respondent children. There is evidence that Ms. N. was agreeable to J.N. having his own counsel for the openness application.

[31] The efforts to engage stakeholders included several attempts at alternative dispute resolution sessions and it was this process that produced the first consent that was not signed by Ms. N., despite reasonable efforts being made by the applicant’s counsel to have Ms. N. sign the consent.

[32] The engagement of the proposed adoptive parents is important because of the Society’s statutory obligation to advise the adoptive parents of the openness application and the details of the proposed openness arrangement prior to the child being placed for adoption: see s. 196(5). Pursuant to s. 196(6), the Society is required to advise the adoptive parents as to the results of the openness application.

[33] Further, the participation of the adoptive parents is necessary because the court is required to consider their ability to comply with an openness arrangement: see s. 196(8).

[34] The general approach of engaging all necessary stakeholders is to be commended because it lays the foundation for achieving a successfully executed openness order.

[35] It was the position of the Society and the OCL that no notice was required to a non-custodial parent in the case at bar.

[36] Ms. N., as a non-custodial parent of C.S.-N. and A.S., did not participate in signing the consent relating to those two children. There was affidavit evidence that Ms. N. had exercised sporadic access to C.S.-N. and A.S. and that she had not had any contact with them since November 2017, despite the father, Mr. S., and his current partner being supportive of access visits.

[37] Given the lack of ongoing access, and Ms. N.’s knowledge of the openness application, including the fact that she signed the consent in relation to the proposed openness order between the applicant and J.N., I am satisfied that it is not necessary to either add Ms. N. as a party or require that she be served with the openness application regarding her role as the non-custodial parent of C.S.-N. and A.S.

[38] The remaining non-custodial parent is the father of J.N. Somewhat unfortunately, and as mentioned earlier, there is no specific information regarding him or whether he exercises access. However, given the totality of the evidentiary record, I am not prepared to delay this matter for further evidence, as I am satisfied that it is sufficient that Ms. N., in her role as the primary caregiver for J.N., has consented to the openness order as it relates to J.N.

SUMMARY

[39] Based on the issues in this case and the submissions of the parties, I would formulate the following principles, which are not exhaustive, to ensure that all necessary persons are aware of an openness application and that there has been due process, in situations where the order for extended society care contains access provisions:

(i) Generally, and especially where the applicant in an openness application is a child, all stakeholders should be involved, to the extent possible, in discussions including ADR to formulate, and agree on, the openness provisions; the stakeholders should include all parties to the application, the proposed adoptive parents and the custodial parent of any child where the child is a party to the openness application.

(ii) In relation to a non-custodial parent of a child where the child is a party to the openness application, in most cases the parent’s involvement may not be necessary; however, in certain cases, depending on the nature and extent of the non-custodial parent’s involvement with the child, it may be appropriate to involve that parent in the process described in paragraph (i).

(iii) The current practice where efforts are channeled to have all stakeholders sign a consent to an openness order is the preferred practice and is encouraged.

(iv) In relation to the proposed adoptive parents, there must be compliance with ss. 196(5), (6) and (8).

(v) The procedure of placing before the court a consent, which has not been signed by a custodial parent, is to be discouraged. An exception could arise where there is reliable evidence, which may consist of affidavit evidence, describing the parent’s position and/or concerns regarding the proposed openness arrangement. However, much caution must be exercised because that parent will have had no opportunity to respond to, or challenge, the evidence.

(vi) Unless it is appropriate to proceed by way of the exception described in paragraph (v), consideration should be given to serving the custodial parent with the application or seeking to add that parent as a party.

(vii) In most cases, in my view, it will be appropriate initially to serve the custodial parent with a copy of the openness application. Where necessary, the application could be redacted to protect confidentiality. Utilizing this procedure will inform the parent of the court date and the nature of the relief sought. If the parent fails to attend court and/or fails to respond to the application, then that parent will face the consequences of r. 10(5).

(viii) In some circumstances, it may be necessary to consider whether to add the custodial parent as a party. This might occur where a parent refuses to engage in any discussions regarding openness, or where there is a dispute between the parent and the applicant regarding the proposed openness arrangement, or where the parent has either appeared in court or filed responding documents on being served with the application. The decision whether to add the custodial parent as a party will require the court to apply the principles discussed in Children's Aid Society of London and Middlesex v. H.(S.), supra, and A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, supra.

(ix) If it is appropriate to add the custodial parent as a party, then consideration should be given whether to limit the scope of the parent’s involvement. Generally, and absent exceptional circumstances, the parent would be limited to defending the openness claim, including advancing a position as to the nature and extent of the openness arrangement. The parent’s participation should be confined to the openness arrangements between the persons as sought in the application. Generally, the parent should not be allowed to make claims for openness arrangements between other parties, as such claims can only be made by an access holder, as discussed earlier.

(x) In relation to a non-custodial parent, generally, it would be unlikely that the parent would be entitled to notice or to be added as a party, other than unusual or exceptional circumstances.

DISPOSITION

[40] The proposed openness order between the applicant and C.S.-N., A.S. and C.L. includes face-to-face contact between the children at least once per calendar year, an exchange of photographs of the children by their caregivers a minimum of twice annually and contains provisions for expanded contact between the children as they develop and mature.

[41] The proposed openness order between the applicant and J.N. is at the discretion of, and as agreed by, their caregivers. The proposed openness order also provides that Ms. N. and the applicant’s adoptive parents shall exchange email addresses for the purpose of exchanging any cards and letters between the children.

[42] However, there was one issue raised by the Society in respect of the proposed openness order regarding the applicant and J.N.

[43] The Society submitted that there should be a provision in the order that none of the children’s caregivers will post pictures or videos of any child not in their care without the explicit consent of the caregivers for those children and, further, that if any information is posted online without the consent of a caregiver for a particular child, then the exchange of pictures and other personal information may cease.

[44] These provisions were included in the other proposed consent order.

[45] For this reason, the Society did not sign the consent relating to J.N. and neither did the proposed adoptive parent. It was the submission of the Society that the proposed adoptive parent was requesting the Society to make submissions to the court that these additional provisions should be part of the order.

[46] The submission of the OCL was that, rather than including the added provisions as part of the formal openness order, that the reasons for judgment should make clear that the expectation of the proposed adoptive parent is that pictures or other information will not be posted without the caregiver’s consent and that, if pictures or other information is posted without that consent, then the exchange of pictures and other personal information may cease.

[47] I would also note that the consent for the proposed order has not been signed by counsel for the child, J.N.

[48] However, given the submissions made by all counsel at the hearing, it is clear that the parties are otherwise consenting to the terms of the proposed openness order in relation to the applicant and the child, J.N.

[49] I accept the submission of the OCL on this point. It was made clear to the court that the adoptive parent does not want any photographs or other personal information regarding the applicant either posted online or shared on the internet without the consent of the proposed adoptive parents (or parents).

[50] The proposed openness order is stated to be at the discretion of both caregivers and on the agreement of both caregivers. If, for example, the privacy aspect of personal information, including photographs, is breached by Ms. N., then the result most likely will be that the proposed adoptive parent will not agree to any further openness.

[51] It is preferable to deal with this issue as suggested by the OCL because Ms. N. has signed the consent and it would not be appropriate to alter the terms of the proposed order agreed to by Ms. N., absent a further adjournment to allow Ms. N. to be contacted on this issue.

[52] In the circumstances, an adjournment would create further delay, which is not in the best interests of the applicant.

[53] I find that the proposed openness arrangements in both orders meet the criteria in s. 196(7). In finding that the openness orders are in the best interests of the applicant, I have considered the factors in relation to best interests set out in s. 179(2) of the Act.

[54] The child, A.S., turned age 12 very shortly after the openness hearing was held. Section 196(7)(c) requires a child who is 12 or older to consent to the order. I am satisfied that A.S. has consented given his counsel’s signature on the form 34M.1 consent filed as Ex. #1.

ORDER

[55] Orders shall go as follows:

1. An openness order in relation to the applicant and the children, A.S., C.S.-N. and C.L., shall issue as asked in paragraph 5 of the consent filed as Ex. #1, clauses 1 to 16, except that the words “the parties and caregivers agree that” shall be deleted from clause 1.
2. In relation to the applicant and child, J.N., an openness order shall issue as asked in paragraph 5 of the consent filed as Ex. #2, clauses 1 to 5.

“Justice Victor Mitrow” Justice Victor Mitrow

Released: July 25, 2019

Footnotes:

[1] The affidavit evidence is as follows: affidavit of S.P.A. sworn February 7, 2018 (filed initially in support of the applicant’s motion to appoint OCL counsel for all four respondent children); affidavit of H.L.F.L. sworn February 19, 2019; and affidavits of M.M.B. sworn April 16, 2019 and April 30, 2019.