WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14) and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act which deals with the consequences of failure to comply, read as follows:
87 . . .
Order excluding media representatives or prohibiting publication
(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
Prohibition re identifying child
(8) 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.
Prohibition re identifying person charged
(9) 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
Offences re publication
(3) 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.
COURT FILE NO.: FS-19-14609
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Appellant
– and –
R.S.
Respondent
Sherri Smolkin, counsel for the Appellant
Sage Harvey, counsel for the Respondent
HEARD: April 27, 2020
kiteley j.
[1] This is an appeal by the Children’s Aid Society of Toronto (CAST or the Society) with respect to access by the mother to RS as ordered by Sherr J. in a decision dated December 2, 2019[^1]. For the reasons that follow, the appeal is dismissed.
Background
[2] This appeal concerns the child RS but the circumstances of his two siblings are relevant.
[3] R.S. is the mother of three children: JSP, JS, and RS. At the time of the hearing in December 2019, JSP was 8 years old, JS 4 years old, and RS was then 9 months old having been born in [...] 2019. JSP’s biological father is B.P. and M.J.G. is JS’s biological father. There is no male parent, as defined in the Child, Youth and Family Services Act, 2017[^2], for RS.
[4] JSP and JS were removed by the Society from the mother’s care on July 28, 2017 and have been living since then with B.P.’s parents (the paternal grandparents).
[5] RS had medical issues at birth and remained in hospital for nine days. The Society brought him to a place of safety (at the hospital) at birth. On February 15, 2019, Paulseth J. placed RS in the temporary care of the Society. RS has been living with the foster parents since February 21, 2019.
[6] Paulseth J. made an order that access by the mother to RS was to be in the discretion of the Society. That order remained in place at the hearing before Sherr J. in November 2019.
[7] The mother had exercised supervised access to RS twice each week at the Society office. At one of those visits each week, the mother, JSP and JS visit with RS for an additional thirty minutes.
[8] On August 12, 2019, the Society reduced the mother’s visits to JSP and JS to once each week due to its concerns about her conduct at visits.
[9] On October 16, 2019, Curtis J. dismissed a motion brought by the mother for increased access to the children.
[10] The six-day child protection trial was conducted in November 2019 and the decision was released December 2, 2019.
Decision under appeal
[11] Pursuant to the CYFSA, the Trial Judge made the following findings and orders relevant to the appeal:
(a) RS was found to be a child in need of protection pursuant to subclause 74(2)(b)(i) of the Act and was placed in extended society care;
(b) RS has access to the mother on terms. The Trial Judge specified three supervised visits each year, for a minimum of one hour each. The Society has discretion to suspend the mother’s access if she acts in an inappropriate or disrespectful manner to its workers at the visits in the child’s presence. If the Society suspends access, the mother may bring a motion to the court to lift this suspension on notice to the Society. The Society is required to provide photos of RS to the mother a minimum of three times each year. The Society is also required to provide RS’s report cards to the mother once each year, redacted for identifying information. Pursuant to subsection 105(7) of the Act, RS is the access holder and the mother is the access recipient;
(c) JSP and JS were placed in the care and custody of the paternal grandparents pursuant to s. 102 of the Act with accompanying orders such as travel. The paternal grandparents were directed to provide the mother with copies of the report cards of JSP and JS and notify her of any medical issue affecting them;
(d) JSP and JS had specific access to the mother to be arranged through the Toronto Supervised Access Centre;
(e) JSP and JS have access with RS to be arranged between the paternal grandparents and RS’s legal guardian, a minimum of nine times each year for a minimum of one hour long. Pursuant to subsection 105(7) of the Act, JSP and JS are the access holders and RS is the access recipient. The sibling access is to take place separately from the children’s access with the mother.
[12] The Respondent has not appealed the findings or the disposition with respect to any of the children.
The appeal
[13] In its appeal from the order granting the mother access, the Society asks that there be no order for access by or to RS and, in the alternative, that the nature, frequency and duration of access be in the discretion of the Society.
[14] At paragraph 49 of the original factum, the Society listed the following seven errors:
(a) The Trial Judge erred in his interpretation and application of the best interests test set out in sections 105(5) and 105(6) of the CYFSA as it pertains to making an access order with respect to a child who is in extended society care.
(b) The Trial Judge erred in law and fact in finding that an order for access by the child to the mother following an order of extended society care would be in the child’s best interests, where there was insufficient evidence to support this finding.
(c) The Trial Judge erred in law and fact by relying on generalities and by making speculative inferences and findings of fact with respect to his determination of the access issue without a sufficient evidentiary basis.
(d) The Trial Judge erred in law and fact by misapprehending the facts and failing to consider all relevant facts with respect to his determination of the access issue, including the limited nature and extent of the child’s relationship with the mother, the inappropriate behaviour of the mother and her conflictual relationships.
(e) The Trial Judge erred in law and fact by making findings related to his determination of the access issue which were inconsistent with his own findings of fact as set out in the decision.
(f) The Trial Judge made a palpable and overriding error by misapprehending the evidence of the Society’s adoption worker when making his determination regarding access.
(g) Having found that the mother was likely to engage prospective adoptive parents in protracted litigation around the issue of openness, the Trial Judge erred in law and fact by finding that this concern would be addressed by making the child the holder of the access.
[15] In oral submissions, the Society focused on issues (a), (c) and (f).
[16] The Respondent took the position that no such errors had been made and that the appeal should be dismissed.
Submissions after the hearing of the appeal
[17] Following the hearing of the appeal on April 27, 2020, I considered the reasons for decision of the Court of Appeal in L.M. v. Children’s Aid Society of the Region of Peel[^3] and I invited counsel to make supplementary written submissions which they did on May 28 and June 2, 2020.
[18] The Society took the position that the decision of the Court of Appeal supported its appeal in respect of the issues raised in paragraph 14 (c) and (f) above in that the Court held as follows:
(a) The court of first instance had erred in taking “judicial notice that many if not most adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order, when there was insufficient evidence upon which to base such a finding, and it was not a proper subject of judicial notice as the legal test was not met (paras. 3, 31 and 74-75).
(b) The court of first instance had erred in finding that an order for access would impair adoption by relying on “common sense” and “informed experience”, again, with insufficient evidence upon which to base this finding in relation to the specific children before the court (paras. 7, 36, 68 and 76).
(c) A finding with respect to the impact of an order for access on a child’s opportunities for adoption must be based on case specific evidence relating to the child before the court (paras. 73-79).
[19] The Respondent took the position that the trial judge in this case had not made such errors but had relied on direct evidence.
[20] During the hearing on April 27, 2020, counsel had made submissions on the reasons for decision dated January 10, 2020, in Children’s Aid Society of Toronto v. J.G.[^4] in which Shore J. allowed the appeal from a decision of Sherr J.[^5] Counsel advised that the appeal from the decision of Shore J. was scheduled to be heard on June 12, 2020. On June 25, 2020, counsel forwarded the reasons for decision of the Court of Appeal[^6] and I provided counsel an opportunity to make supplementary written submissions, which they did on July 10 and 17.
[21] In supplementary submissions, the Society took the position that, as a result of C.A.S.T. v. J.G., it no longer relied on paragraphs 56 to 67 of its original factum and specifically abandoned the submissions on the issue of “beneficial and meaningful relationship” and “existing versus future relationship”. The Society continued to rely on the balance of the original factum and on the supplementary submissions dated May 28, 2020 as support for its position that the Trial Judge had erred with respect to the following:
(a) The interpretation and application of the mandatory consideration under the best interests test related to whether an order for access would impair the child’s opportunities for adoption;
(b) The findings of fact in relation to the issue of access which were based on speculation or generalization without a sufficient evidentiary basis and/or were inconsistent with or contrary to the other findings of fact made throughout the decision;
(c) Making the child the “holder” of access as a means to address the concern about the Respondent mother being likely to engage prospective adoptive parents in “protracted litigation of openness issues”. This is contrary to the operation of the legislation, whereby the Respondent mother would be a party to any application for openness, and would also have the ability to initiate applications to vary any order for openness, or to appeal any decisions made on such applications, even after the child was adopted;
(d) The misapprehension of the evidence of the Society’s Adoption Worker, and subsequent reliance on this as a basis for the access order;
(e) The overall application of the best interests test to the facts and the evidence in the case.
[22] In supplementary submissions, the Respondent took the position that the Court of Appeal had endorsed and upheld the decision of the same Trial Judge in J.G. which involved an infant who was less than 2 years old at the time of the trial. The Respondent noted the concession made by the Society that its prior submissions on the subjects of “beneficial and meaningful relationship” and “existing vs. future relationship” were no longer viable. The Respondent submitted that the remaining grounds of appeal were not viable.
[23] As indicated below, I have consolidated the grounds for appeal to reflect the changes required by the decision in J.G. I do not consider it necessary to address the issue described in paragraph 21(e) because it is incorporated in the analysis of the other grounds of appeal.
Motion for fresh evidence
[24] The Society brought a motion to admit the affidavits of K.L., Family Services Worker, and C.M., Family Support/Access Worker, both dated April 15, 2020 with respect to the mother’s access with her children since the order was made on December 2, 2019.
[25] The test for admission of fresh evidence is stated in Children’s Aid Society of the Niagara Region v. A.C.[^7], namely that it should generally not be admitted if, by due diligence, it could have been adduced at trial; the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; the evidence must be credible in the sense that it is reasonably capable of belief; and the evidence must be such that, if believed, it could reasonably, when taken with the other evidence at trial, be expected to have affected the result. The test is to be applied flexibly in family cases where the fresh evidence concerns the best interests of the child.
[26] In the affidavits, the workers describe access visits with the mother, JSP, and JS, all of which occurred after the release of the decision on December 2, 2019. It follows that it could not have been adduced at trial. The evidence is reasonably capable of belief.
[27] The issues are whether the evidence is relevant, in that it bears upon a decisive or potentially decisive issue in the trial, and whether it could be expected to have affected the result.
[28] The Society argues that the evidence of K.L. and of C.M. indicate that the conflictual behaviour by the mother has escalated and she has demonstrated new behaviour including her reaction to sibling access, her refusal to speak to the family service worker, moving furniture, and telling JSP and JS they will be going home with her. The Society takes the position that while the evidence relates to JSP and JS, it is relevant to adoption planning for RS.
[29] In paragraphs 230 and 231 (a) to (c) of the decision, the Trial Judge made findings about the mother’s behaviour in relation to JSP and JS. The affidavits of K.L. and of C.M. demonstrate that the behaviour in relation to JSP and JS and particularly in relation to access visits continued after the release of the decision dated December 2, 2019.
[30] The Trial Judge also heard evidence about the mother’s behaviour in relation to access with RS. At paragraph 226(l) to (o), he made findings that she had shown she can take care of RS’s instrumental needs such as changing, feeding and soothing him. She sings to and engages RS during her visits, and most of these visits with RS were positive. She can be calm and patient with RS, and she “has developed a very good relationship with RS’s foster parents. She expressed appreciation for everything that the foster parents have done. She is respectful to them. She communicates regularly and appropriately with them about RS in a communication book. Her communications with the foster parents are child focused.” In paragraph 335, the Trial Judge observed that that behaviour might change and conflict similar to that involving JSP and JS might surface in relation to RS.
[31] In my view, the evidence fails to meet the test for admissibility in two respects. The fresh evidence is only marginally relevant because it relates to the access between the mother and JSP and JS which is qualitatively different from the access between the mother and RS. Furthermore, it is more of the same quality as the evidence at trial, all of which affected the result. When taken with the extensive evidence to which the Trial Judge referred on the subject of conflict arising from the mother’s access to JSP and JS and the findings about the mother’s concerning behaviour, I am not persuaded that the evidence of K.L. and C.M. could reasonably have affected the decision of the Trial Judge to order access between mother and RS.
[32] The motion for leave to admit fresh evidence is dismissed.
Standard of Review
[33] In Children’s Aid Society of Toronto v. L.[^8] the court articulated the standard of review as follows:
Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235 confirms that different standards of review apply depending on the nature of the issue. For a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings).
For a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
Analysis
Issue #1: The impact of C.A.S.T. v J.G.
[34] In C.A.S.T. v. J.G.,[^9] Sherr J. conducted a mini-trial during which he heard oral evidence. The mother ultimately consented to an order for extended society care and the only issue was her access to the child. The trial judge made an order for access. The appeal judge allowed the appeal and overturned the decision.[^10] The introductory paragraphs of the decision of the Court of Appeal bear repeating:
Historically, it has been difficult for a biological parent to obtain the right to access a child placed in the extended care of a children’s aid society (previously called “Crown Wardship”). There was a legislated presumption against access and there was a strict test to be met. The legislation at the time, the Child and Family Services Act . . . required that an applicant establish that the relationship “is beneficial and meaningful” to the child and that the access would not impair the child’s opportunities for adoption. This changed in 2018 when the CFSA was repealed and replaced with the Child, Youth and Family Services Act . . . The new legislation reflected a change in the approach to many aspects of child protection law, relating to children in care, including access. The former strict interpretation of a “beneficial and meaningful” relationship was expanded to incorporate a broadly-based best-interests analysis.
This court has referred to the significance of the change on more than one occasion.[^11] Yet, some lower courts continue to apply jurisprudence based on the old restrictive test.
Here, the trial judge applied the new approach to the determination of access for a mother and ordered access at the discretion of the children’s aid society. The appeal judge applied the old restrictive test, allowed the appeal and overturned the decision.
For the reasons that follow, I would allow the appeal and restore the trial judge’s order.
[35] The Court of Appeal clearly rejected the previous narrow interpretation of “beneficial and meaningful” and approved the broader interpretation by the Trial Judge.
[36] In the present case, the Society had originally argued that the Trial Judge erred in finding that access was beneficial to the child based on the “potential” for him to have a meaningful relationship with his mother “in the future”.
[37] In paragraphs 48 to 53, the Court of Appeal dealt with the temporal issue. Benotto J.A. held at paragraph 51 that the child’s best interests are not static. Moreover, s. 74(3) requires the court to consider any other circumstance in the case, including the child’s development of a positive relationship, continuity in the child’s care and the possible effect on the child of disruption of that continuity, and the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. At paragraph 52, the court held that the underlined words all demand considerations that continue through time. I also observe that a future rather than an existing analysis is particularly important in a case such as this where RS was placed in Society care at birth and the only relationship RS could develop with his mother was in the future.
[38] In its supplementary submissions, the Society appropriately abandoned its appeal insofar as the Society alleged error in the findings related to “beneficial and meaningful relationship” and “existing versus future relationship”.
[39] The analysis by the Trial Judge in J.G. is consistent with his analysis in R.S. On the basis of the approval by the Court of Appeal of the reasons for decision in J.G., I now turn to the remaining specific issues raised by the Appellant.
Issue #2: Did the Trial Judge err in his interpretation and application of s. 105(6) as to whether an order for access would impair this child’s opportunities for adoption?
[40] In paragraphs 260 to 277, the Trial Judge set out the legal considerations relevant to access. At paragraph 265, the Trial Judge referred to subsection 105(6) of the Act, namely “if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption”. At paragraph 266, he noted that the approach to access had changed, that the court must apply the best interests test, and that opportunities for adoption is one of many factors. Furthermore, the presumption against access no longer applied.
[41] At paragraph 267, the Trial Judge made reference to his findings in J.G. at paragraphs 81-88. At paragraph 269, the Trial Judge repeated his finding in paragraph 95 of J.G. that when discussing the future of a 15 month old child, whether access will impair a child’s future opportunities for adoption will almost always be relevant. At paragraph 270 he noted that a child can now be placed for adoption when there is an existing access order. At paragraph 271, he observed that “impairment” included the opportunity to be adopted and the delay in being adopted. At paragraph 272, he distinguished between forms of access that may deter future adoptive applications and others that would not. At paragraph 273, he held that the challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency in the new adoptive home. At paragraph 274 he noted the qualitative differences in the amount of contact before and after an extended society care order is made. At paragraph 275, he observed that it is not the parent-child aspect of the relationship that is being continued by a post-adoption openness order because the parent child relationship vests in the adoptive parents. At paragraph 276, the Trial Judge noted the distinction between the access holder and the access recipient.
[42] As the decision makes clear, the Trial Judge properly interpreted and applied the CYFSA in situating the criterion of “impairing opportunities for adoption” within the many criteria to be considered in making an access order. He did what the Court of Appeal in J.G. contemplated in paragraph 1 (quoted above) and in paragraph 46, namely that the new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. Having interpreted the evidence as a whole, the Trial Judge exercised his discretion to consider all of the factors, including impairment of opportunities for adoption. I am not persuaded that the Trial Judge made any palpable and overriding error in his decision on this issue.
Issue #3: Did the Trial Judge err in law and fact by relying on generalities and by making speculative inferences and findings of fact with respect to his determination of the access issue without a sufficient evidentiary basis? Did the trial judge misapprehend the evidence of the Society’s Adoption Worker and rely on that misapprehension as a basis for the access order?
[43] In view of the nature of the challenge to the evidence on this issue, I will refer to the evidence in some detail.
[44] At the trial, the Society filed the November 1, 2019 affidavit of S.P., an adoption worker with the Society. She set out her education and her employment history including having been employed by the Society since September 1999 and acting as adoption worker since May 2014. She had completed the Adoption Competency Training course and was qualified to complete home studies.
[45] In relation to RS, S.P. had attended the Branch Planning conference in October 2019, regarding long term planning. She had spoken with the Family Service Worker and the Children’s Services Worker who had apprised her of RS’s progress since birth, his feeding and muscle tone issues, his low birth weight and challenges and concerns around his gaining weight. She had reviewed relevant information in the Society’s file. In October, she had met with the foster parents who had updated her on RS’s appointment at the medical clinic that day and who spoke about RS’s cultural background and his day-to-day routines and functioning in the foster home as well as his access visits. She had exchanged emails with the nurse at the medical clinic about RS’s development and weight. In paragraphs 10 to 21 she described the steps she would take to assist RS in moving to a permanent family through adoption if the court made an order that he be placed in extended society care. Her affidavit included the following:
An adoption planning meeting would take place with the Service Team to review RS’s needs and ascertain the type of family that would best meet these needs. This would include discussions about a family that is a cultural match, a family having a willingness and ability to access community resources, a family that is accepting of RS’s possible special needs as they are identified and a family open to potential contact with birth family.
The adoption department would be obligated under the legislation to develop a permanency plan. The plan would take into account the child’s readiness for adoption, individual needs, and the possible benefits of openness.
The Society will generally be looking for an adoptive family with the following characteristics:
a. A family who is or identifies as South Asian, and/or is Punjabi speaking and/or has a connection to the Sikh religion. . . .
f. A family that is accepting of RS’s mother’s history of mental health concerns as well as substance use. . . .
i. A family who is willing to consider RS having some kind of openness with his birth family due to his current contact with his birth family. . . .
In my professional assessment, RS would benefit greatly from the permanency available through adoption. It is important to note that all children benefit from the greater security, acceptance, sense of belonging and normalcy, love and opportunities afforded to them by a permanent family situation. . . .
The Society will be able to find an adoptive family for RS given his young age and the fact that he is doing well overall, despite the above noted concerns. Although I have no concerns about finding an adoptive family, it will be more complicated given RS’s cultural needs, maternal history of mental health concerns, possible FASD and other needs and possible openness related issues.
In term of possible issues related to openness, each adoptive family is different. The Society speaks to all new adoptive families about potential openness, but cannot give them specifics until there is a specific child to present. Some adoptive families are accepting of contact with birth parents, and some are not. While most adoptive families I find are accepting of some sibling contact, as it is my understanding that RS’s older siblings will be having ongoing contact with their birth parents, given the birth mother’s mental health issues, I suspect that most adoptive parents would be concerned about that, however, it is hard to predict at this stage. Given some of RS’s other needs at this point, the more that is required of any potential adoptive parent, the harder it may be to find an adoptive family as he becomes more complicated.
If there is to be a court order for access, then the adoptive family’s ability or willingness to facilitate openness will have to take some priority over other factors in the search for an adoptive family. Some of the above noted characteristics that the Society will be looking for in an adoptive family may not be present depending on the adoptive family’s willingness to facilitate openness.
The adoptive family’s acceptance of the maternal history of mental health and RS’s current and possible future needs is essential, and if there is to be an access order, the family’s willingness to facilitate openness is also essential, however, the Society also considers finding a family with a connection to RS’s cultural identity to be of great importance in this case. [Emphasis added.]
[46] S.P. began her evidence on November 19. It was interrupted to accommodate another witness and finished on November 20. Her examination-in-chief consisted of affirming the contents of her affidavit. Counsel for the Respondent and for the children JSP and JS conducted cross-examination. On November 20, counsel for the Society was permitted to resume examination-in-chief to address the question as to whether the foster parents had indicated a willingness to adopt. Cross-examination continued and then brief re-examination by counsel for the Society.
[47] In paragraphs 319 to 333 of the decision, the trial judge summarized the evidence of the Adoption Worker. The Society challenges the Trial Judge’s findings on these grounds:
(a) he made a finding based on speculative inferences and insufficient evidence;
(b) he relied on generalities and made speculative findings and inferences about potential benefits to RS which were not based on evidence specific to R.S., RS or the prospective adoptive parents;
(c) he misapprehended the evidence of the Adoption Worker on the subject of potential benefits, in general, and specifically on the subject of a child “knowing their story”, and distinguished this from the issue of contact with birth family or openness, stating that these could be two different things;
(d) the statements attributed to the Adoption Worker in paragraphs 328, 330 and 331 of the decision were not part of the evidence.
[48] At page 129-130 on November 19, in cross-examination, the following exchange took place:
THE COURT: Okay. And can you tell me, how often do prospective adoptive parents say that they would not be open to any contact with the birth family?
ANSWER: Again, I can’t specifically, you know, say, how often families do. I mean, we, at this point, where we are today, we would want and expect all our adoptive families to have some contact. . . . but each family is unique and some families are more open than other families, but we’re clear that that’s what we’re looking for. . . [Emphasis added.]
[49] The transcript indicates that the Trial Judge was engaged in the evidence of S.P. On November 19, at page 125 he interjected in the cross-examination by counsel for JSP and JS (whose focus was primarily sibling access) and the witness confirmed that there is a spectrum as to what will make it easier or harder to find adoptive parents. She agreed, for example, that access four hours every week might dissuade most adoptive parents but cards and letters would not be a problem.
[50] Over pages 43 to 44, in cross-examination on behalf of JSP and JS, counsel asked about the importance of an adopted child knowing “his story”. S.P. agreed that “many children” would want to know “their story” but she was clear that it was child specific. At page 45 she resisted a “sweeping generalization” as to whether, once a child is adopted, the openness arrangement is less than what it was for access prior to the order for extended society care because “each situation is unique”. At page 46, she agreed that she did not have any statistics about openness orders generally and that the agency and the provincial association did not keep those statistics.
[51] On page 47, the Trial Judge asked whether there was any reason why the Society was not keeping those statistics and he observed that it would be useful to have information as to what levels of access might or might not impair adoption in various circumstances. S.P. said that nobody seemed to be looking at it and she did not know why.
[52] On page 47, counsel for JSP and JS suggested that the Adoption Council of Ontario kept statistics about openness orders. S.P. could not confirm that such data existed but did confirm that the Adoption Council was a source of identification of adoptive families and confirmed again that her investigation was to meet the needs of the specific child. Counsel challenged S.P. that she had no evidence as to what impact a sibling access order would have on the availability of adoptive parents and S.P. said that she had her own experience and, in the case of infants, it was five to ten infants.
[53] In re-examination, counsel questioned S.P. on the extent to which she had been involved in placing children for adoption. She confirmed 35 to 40 families and, of those, 5 to 10 would have involved infants from 15 months to three years old.
[54] Starting at page 55, the Trial Judge asked questions about her training on openness. She said that, in the training to conduct home studies, there was talk about openness but there was no formal course or training or literature. S.P. confirmed that she had no knowledge as to how openness works in other provinces or countries and confirmed that the Society had not provided her with any direction on openness.
[55] S.P. confirmed that the Society does not keep any data on openness orders and that she had not been provided with any data from other jurisdictions. She also confirmed that she had not received any training about the benefits of openness.
[56] At page 57, the Trial Judge returned to the evidence that it was “important for every child to know their story” and he asked for more detail as to why that was the case. On pages 58 to 60, S.P. explained why it would benefit a child. She said that the society had “life books” that would have photos that are shared with the children throughout the year so that the child can refer to the photos to know the things that have happened to them as a child. At page 60 S.P. confirmed that if the openness contact is positive “it can help to reinforce their story, their culture, their identity, their religion, build connections”. At page 61 the following exchange occurred:
THE COURT: Okay. Has there, sort of, been an evolution in approach by the society, by the legislation and the work you do with adoptive families?
ANSWER: Yes, because there was no openness at one point.
THE COURT: Right.
ANSWER. . . many years ago.
THE COURT: And, you do – you said yesterday that you have an expectation that any potential adoptive family needs to be open to the idea of openness.
ANSWER: That’s right.
THE COURT: And, the families that would be open to that would likely be given a priority to a family that wasn’t open to that.
ANSWER: That’s right. [Emphasis added.]
[57] In re-examination, counsel returned to the subject of the child knowing “their story.” S.P. explained that the Society prepares a “life book” that has the child’s history that helps to talk about their story. She described it as a “social history of the birth parents prepared by the family service worker”.
[58] Having reviewed the affidavit and the transcript, I am satisfied that the Trial Judge’s findings in paragraphs 319-324 and 326, 327, 329 and 333 are all grounded in the evidence. Paragraph 325 is a conclusion reached by the Trial Judge who made it clear in his questioning that the absence of data was problematic. The findings in paragraphs 328, 330 and 331 (those to which the Appellant takes objection) are inferences that could reasonably be drawn from the evidence, including S.P.’s responses to questions from the Trial Judge.
[59] S.P. gave evidence from her own experience. She was clear that “we would want and expect all our adoptive families to have some contact”. She was cautious to qualify her evidence with reference to the needs of the specific child. She noted that, until an order is made for extended society care with a specific access order, an adoption worker is not in a position to investigate the availability of adoptive parents because the worker needs certainty as to the needs of the child and cannot explore the availability of adoptive parents based on speculation. I do not accept the submission that the Trial Judge drew inferences from “generalizations”.
[60] As indicated by the Court of Appeal in C.A.S.T. v. J.G. quoted above in paragraph 34, the CYFSA removed the legislated presumption against access and the strict test a parent had to meet to obtain an order for access. Instead, the court must apply the best interests test. In my view, that requires the Society to provide evidence on which the court can make informed decisions about openness. The transcript illustrates that the Trial Judge was searching for data and was told that the Society did not track openness orders[^12].
[61] These are not circumstances such as in L.M. The Trial Judge did not rely on judicial notice, common sense, or “informed experience” or decisions from other cases. He relied on the evidence and inferences properly drawn from the evidence. I am not persuaded that he made palpable and overriding errors in his findings on the evidence or in the inferences he drew from those findings.
[62] In considering the submissions on this issue, I am mindful that as the Trial Judge held in paragraph 349, the Society and the OCL agreed that it is in the best interests of the children that they have sibling access. In paragraph 343(e), the Trial Judge held that it might become confusing for RS and unfair to him to know that his siblings are seeing the mother but he cannot. That was a reasonable inference for him to draw given the evidence of the ongoing access amongst the children. In paragraph 353, the Trial Judge found that based on the evidence of S.P., the Society will not consider adoptive parents who are unsupportive of sibling access. It was clearly a factor considered by the Trial Judge in the exercise of his discretion in making an order for access between RS and his mother that RS would have ongoing sibling access. The Trial Judge made an order that the three children have access to each other and that decision is not under appeal.
Issue #4: Did the Trial Judge err in law and fact by making the child the “holder” of access as a means to address the concern about the Respondent mother being likely to engage prospective adoptive parents in “protracted litigation of openness issues”? In his findings and disposition as to access, did the Trial Judge contradict earlier findings on which he relied to find that RS was in need of protection?
[63] The Appellant argued that making the child the access holder was contrary to the operation of the legislation because the Respondent would become party to any application for openness and would also have the ability to initiate applications to vary any order for openness, or to appeal any decisions made on such applications even after the child was adopted.
[64] As indicated above, in paragraph 226(o), the Trial Judge made findings about the positive relationship between the Respondent and the foster parents. At paragraph 335, the Trial Judge also observed that, although the Mother was able to establish a positive and respectful relationship with RS’s foster parents, that relationship might change if the foster parents were to be put in a position where they had to provide boundaries for the mother because she does not respond well to boundaries and indeed had had only a few personal interactions with the foster parents. At paragraph 337 the Trial Judge noted the risk concerns including the possibility that the mother would not support RS’s placement.
[65] In paragraphs 276 and 277, the Trial Judge dealt with the distinction between an access holder and an access recipient. He said the distinction had become a “critical consideration” because only the access holder has the right to bring an openness application if served with a notice of intent to place a child for adoption. The access recipient does not have the right to bring an openness application and only has the right to be served with the Society’s notice of intent to place a child for adoption. The Trial Judge noted that subsection 105(7) of the Act recognizes the importance of the distinction when an order for access is made when the child is placed in extended society care.
[66] In paragraphs 360 to 364, the Trial Judge concluded that it was not in RS’s best interests to make the mother an access holder because of the prospect that the mother would otherwise embroil the prospective adoptive parents in protracted litigation of openness issues.
[67] The Trial Judge turned his mind to the distinction and, in weighing the best interests of the child, he concluded that the mother’s history of provoking conflict with Society workers and other service providers and with the grandparents could be curtailed if she were not an access holder. That is an exercise of discretion in what he described as a “critical consideration”. I am not persuaded that the Trial Judge made a palpable and overriding error in making the order that RS is an access holder and the Respondent an access recipient.
[68] The Appellant also argued that the Trial Judge made findings to support his decision that RS was a child in need of protection that were inconsistent with his findings and decision to make an access order. The decision of the Trial Judge consists of 367 paragraphs over 56 pages. The Trial Judge weighed all of the evidence in considerable detail and relied on some evidence for the purpose of finding that RS was a child in need of protection and other evidence for ordering access. That does not demonstrate inconsistency.
ORDER TO GO AS FOLLOWS:
[69] The motion for leave to admit fresh evidence is dismissed without costs.
[70] The appeal is dismissed without costs.
Kiteley J.
Released: August 21, 2020
COURT FILE NO.: FS-19-14609
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Appellant
– and –
R.S.
Respondent
REASONS FOR JUDGMENT
Kiteley J.
Released: August 21, 2020
[^1]: Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866. [^2]: S.O. 2017, c. 14, Sched. 1 (“the CYFSA” or “the Act”). [^3]: 2019 ONCA 841, 149 OR (3d) 18. [^4]: 2020 ONSC 1135. [^5]: 2019 ONCJ 333. [^6]: 2020 ONCA 415. [^7]: 2018 ONSC 1111 at paras 25-29. See also C.A.S.T. v. P.M., 2015 ONCA 695 at paras. 22-23. [^8]: 2010 ONSC 143, [2010] O.J. No. 26 (S.C.J.). [^9]: 2019 ONCJ 333. [^10]: C.A.S.T v. J.G., 2020 ONSC 1135. [^11]: e.g. Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316; L.M. v. Peel Children’s Aid Society, 2019 ONCA 841. [^12]: In L.M. the Court of Appeal observed at paragraph 81 that it was not necessary to address the proposed fresh evidence submitted by the Office of the Children’s Lawyer in the form of the affidavits of the Executive Director of the Adoption Council of Ontario and an associate professor of law and social work at the University of Toronto. The Court of Appeal noted that those affidavits emphasized the potentially significant benefits to children of access orders and how such orders do not impair the prospects for adoption. Based on the Court’s description of the evidence, it appears that some data exists.