WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
87(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FA-18-34-1
DATE: 2021/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1.
AND IN THE MATTER OF D.M.H.L., Applicant
Chantel E. Carvallo, for the Office of the Children’s Lawyer
BETWEEN:
H.F. Respondent (Applicant in his own Application)
– and –
M.L.L. Respondent
– and –
D.S. Respondent
Cedric Nahum, for the Father
In default In default
– and –
Children’s Aid Society Respondent
Deborah Souder, for the Children’s Aid Society of Ottawa
HEARD: January 13 and 14, 2021
REASONS FOR JUDGMENT
DOYLE J.
Overview
[1] There are two separate openness applications before the Court. One on behalf of the child D.M.H.L., born ---2018 (“the child”) brought by the Office of the Children’s Lawyer’s Office (“OCL”) and one by the father H.L.
[2] The OCL requests, among other things, that the child have in-person openness contact with his birth father a minimum of twice per year. His birth paternal grandmother may attend.
[3] The birth father requests, among other things, that he have in-person openness contact with the child once per month and that his own mother can attend.
[4] The Children’s Aid Society (“CAS”) supports the child’s application.
[5] The parties have consented to all other terms of the openness order as follows:
- The in-person openness contacts shall take place in the community and in the presence of the child’s caregivers.
- The dates and location of the in-person contacts shall be mutually arranged between the child’s caregivers, the birth father and the birth paternal grandmother. When arranging the contacts and when determining the duration of contacts, the child’s needs, age, wishes and best interests shall be considered. The child’s best interests in this regard shall be determined solely by the adoptive parents.
- The child’s caregivers and the birth father agree to keep each other updated with a working email address, so that they may communicate for the purpose of arranging the in-person visits.
- If a visit is cancelled due to illness or inclement weather, the child’s caregivers, the birth father and paternal grandmother will promptly reschedule the visit within 4 weeks.
- If the birth father fails to attend a scheduled in-person openness visit, the adults will discuss the reasons for the missed visit and the child’s caregivers will have sole discretion with respect to rescheduling the visit.
- If D. refuses to attend an in-person openness visit, the adults will discuss the circumstances, and his caregivers may share updates with the birth father and with the paternal grandmother regarding the child via email, or the adults themselves may choose to still meet in-person.
- The child’s caregivers will provide email updates to the birth father a minimum of two times per year.
- Email updates sent by the child’s caregivers to the birth father will consist of updates with respect to major medical events, other developments in the child’s life, and pictures.
- Any pictures sent to the birth father by the child’s caregivers will not be distributed through any means of social network or over the internet. If any pictures sent are distributed through any means of social network or over the internet, then the adoptive parents will have the option of suspending the exchange of pictures. The child’s caregivers will indicate their concern and decision to the birth father via written communication.
- The parties will treat each other with mutual respect when they communicate in writing via email.
- The child may exchange cards and/or letters with either his birth father, or with his birth grandmother, a minimum of two times per year, by email.
- If there is any disagreement with respect to contact between the child and his birth father and paternal grandmother, the child’s caregivers and the parties agree to request alternative dispute resolution.
- If the child’s adoption disrupts prior to the finalization of the adoption order, the CAS shall advise the OCL and the terms of this openness order shall continue unless otherwise varied or terminated.
[6] The issue for this Court is to determine how many in-person openness contacts per year the child should have with his birth father which could include his paternal grandmother. In determining this, the Court must consider the child’s best interests as set out in s. 179(2) and the factors set out in s. 196(7), (8) of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1(“CYFSA”).
Background
[7] The child was taken to a place of safety by the CAS at birth and placed in a foster home.
[8] In the first year of the child’s life, the birth father consistently exercised supervised access once per week.
[9] The paternal grandmother commenced her access with the child in November 2018 when she became aware of the existence of the child. She visited the child once or twice per month with the father.
[10] On June 18, 2019, at an uncontested trial, Justice Tellier ordered that the child be placed in the extended society care for the purpose of adoption. She ordered that the access to the birth father and the paternal grandmother would be twice per week at the discretion of the CAS including location, level of supervision and duration and in accordance with the child’s best interests. Access by the mother D.S. would be terminated.
[11] The father exercised his twice per week access from June 2019 to October 21, 2019 originally at 2.5 hours per visit, and was then reduced to 1.5 hours by the CAS.
[12] The last visit before the placement in the adoptive home was October 21, 2019 at Cosmic Adventures with both the birth father and birth paternal grandmother.
[13] Access ended when the child was placed for adoption.
[14] The openness applications were served and filed.
[15] The parties attended mediation on two occasions and also attended a settlement conference. No agreement was reached with respect to the in-person openness contact.
[16] The child was exposed to prenatal substances and there could be future developmental or cognitive special needs issues.
[17] The adoptive mother’s evidence confirmed that the child has manifested the following special needs and how they are being addressed by the adoptive parents:
- In February 2020, the child had been diagnosed with global development delays;
- The child’s left kidney has been atrophying since birth and slowly disappearing which requires the child to attend regular meetings with medical professionals at the Children’s Hospital of Eastern Ontario (“CHEO”); there are follow ups with CHEO every six months for urinalysis and ultrasound, and to meet with the phrenologist to ensure that his right kidney is stable;
- He has speech delays which places him below the age standards;
- The child has issues with his fine motor skills and due to Covid-19 restrictions there were delays in obtaining medical attention at CHEO; he is now receiving services including private physiotherapy and services through CHEO;
- The parents participated in the Hanen program to assist them in aiding the child in his speech development which was a 2-month long program every week for 3 hours;
- The parents participated in a video assessment with a speech pathologist and there will be a follow-up;
- The child attends physiotherapy once every two weeks to assist in his walking and running as his right foot turns inwards due to week abdominal muscles; there is another appointment with a pediatric specialist in February 2021;
- The child will be attending an occupational therapy assessment to determine if he will require an occupational therapist;
- In the past year, the adoptive parents have met with the child development specialist at CHEO, once per month, to learn how to work with the child regarding his speech and fine motor skills; and
- In January 2021 the adoptive parents have four appointments for the child; two for physiotherapy; one speech; and one nephrology.
[18] The adoptive mother indicates that the child’s vocabulary has improved since he has come to live with them. She had taken a year off from her employment to be with him. The adoptive father took two months off, and while the parties were waiting for a spot for the child at the daycare, the paternal grandmother cared for the child.
[19] At the daycare, the adoptive parents obtained funding to allow a support worker to assist staff at the daycare with the child.
[20] The child is active in swimming, dance lessons, walking, attending parks, kicking a ball and playing outside. He loves to play with sensory toys.
[21] The adoptive parents have family in the area, while the adoptive maternal grandparents reside out west and they communicate via electronic means.
[22] The adoptive parents have travelled extensively and in pre-Covid-19 times, would more regularly get together with family and friends.
[23] The child recognizes the adoptive family members even though they do not get together too often. The adoptive father says they see his own family six times per year.
[24] The adoptive parents met the birth father, and all describe the first meeting as “awkward” given that they were all strangers to each other.
[25] On the December 20, 2020 visit with his birth father and paternal grandmother, the child did not recognize his birth family and played on his own for the most part. The birth father had brought a ball for the child which he enjoyed playing with.
[26] The adoptive father stated that he and his wife were not made aware that the birth family could have more than three visits per year. He wishes to ensure that they are not stressed parents in order to be the best they can be for the child.
[27] The openness worker works with and supports the adoptive and birth family during the process of the adoption and openness. She is a resource person who provides training, counselling and answers any queries. She worked with the adoptive family and met and spoke to the birth father, but he never reached out again. She is prepared to continue to work with the families in the future if they need her.
OCL Position
[28] The OCL submits that the child shares a bond with his birth father, that they should continue to see each other after adoption and that the child shares his Haitian heritage and Christian religion with his birth father, and that he remains connected as a member of those communities.
[29] The OCL supports meaningful and consistent openness between the child and his birth father and the openness should be child-focused, safe and feasible which meets the child’s individual needs.
[30] The OCL submits that the birth father’s openness application resembles more of an access order than an openness contact order. He did not reach out to the openness counsellor to obtain information and support regarding the objectives and purposes of an openness order.
[31] The adoptive parents have taken courses and appreciate the purpose of an openness order. Section 196(8) of the CYFSA mandates the Court to consider the ability of the prospective adoptive parents to comply with the openness order.
[32] Openness ought to afford the child with the ability to maintain his existing relationships and connections with his biological father and paternal grandmother so that he can move on with the adoption and have his questions answered.
[33] However, the child needs to have his roots with the adoptive family and the Court must consider their ability to comply with the openness order.
[34] The child needs to have a sense of security and permanence but still have a connection with his birth father and paternal grandmother to allow him to better and more fully understand his identity and culture.
[35] The adoptive parents understand the need for the child to maintain a connection with his birth father, but the litigation was extremely stressful. More than two visits per year would be very stressful for the adoptive parents. They not only work full time; they have to meet their child’s needs and their own needs.
[36] A suggestion was made by the father’s counsel that the birth father could join the adoptive parents’ activity. This would require extensive planning and could require rescheduling.
Birth Father’s position
[37] The birth father submits that he should have frequent contact with the child to ensure the child’s connection with his background. They both have Haitian heritage and Christian religion, and the connection needs to be maintained.
[38] Only by having regular contacts with the child, can the child recognize him and have a relationship with him like a Big Brother. He can be an extension of his family who will be an individual who the child asks questions in the future as needed.
[39] He previously had over 100 visits per year and the father understands his role and is content with the child’s development in his adoptive home. He supports the placement but for the child to understand who he is and appreciate the father’s existence, the contact must be more than 2 or 3 times per year.
[40] Contact can change over time but for the next couple of years it important given the child’s young age that he see his birth father more often. He is willing to accommodate the adoptive parents’ schedule and join in an outdoor activity for an hour once per month.
[41] The in-person contact with the child should be based on the child’s individual needs rather than “standard positions” of the CAS and OCL.
[42] Before the child was placed with the adoptive family, the child enjoyed time with his birth father twice per week. The child had regular time with his paternal grandmother.
[43] The birth father wishes to ensure that the child recognizes him and does not believe that two in-person contacts per year for one hour each contact, would allow this to occur.
[44] He had gone 14 months without seeing the child after he was placed in the adoptive home and the child did not recognize him on the next visit which occurred in December 2020. He wishes to ensure that a bridge exists between him and the child so that he can be there for him in the future if he has any questions regarding his background.
[45] In his testimony, the birth father stated that he understood that he no longer had rights to make decisions regarding the child and acknowledged that the adoptive parents were good parents to the child.
[46] He wants to be a big brother and ensure that the child has a connection to his past and he is the only one who could answer the child’s questions about his mother.
[47] He emphasized the importance of in-person contact to enable the birth father and child to see each other’s faces. If the in-person contact is only 3 or 4 times per year, he will be a stranger to the child. He is prepared to be flexible in the future as he gets older. He is prepared to meet the adoptive parents on their outings and since he is not working and on ODSP, he is very flexible with his time.
[48] He was saddened in the December 2020 meeting that the child did not recognize him.
[49] He will not foster a relationship between the child and the birth mother. He does not know of her whereabouts.
CAS Position
[50] While the CAS agrees that it is the child’s best interests to have an openness order with his birth father and paternal grandmother, it submits that it should be a minimum of two in-person openness visits per year and these visits should take place in the community in the presence of the child’s adoptive parents.
[51] The adoptive parents would provide an update about the child’s development, interests and activities a minimum of twice per year.
[52] Mediation would assist the family to resolve issues.
Legal Framework
[53] Section 195 of the CYFSA sets out the openness application process involved when there has been an extended society care order with access. It sets out the required notices to be provided to every person who has been granted a right of access under the access order and to every person with respect to whom access has been granted under the access order.
[54] The significance of this notice is that the access order (Justice Tellier’s Order) will terminate upon placement for adoption. It gives the person or persons set out in paragraph 16 above the ability to apply for an openness order within 30 days after notice is received.
[55] Section 196 sets out, among other things, who receives the notice, how notice is to be provided to the child, information that must be provided by the CAS to the prospective adoptive parents including whether an openness application has been made, the relationship of the applicant to the child and the details of the openness arrangement requested.
[56] Only the access holder can apply for an openness order (s. 196). Adoptive parents are not served and are not parties, but the CAS is required to keep them informed of any applications.
[57] Pursuant to s. 196(6), it obliges the CAS to advise the prospective adoptive parents of the outcome of the application.
[58] Sections 196(7)-(8) provides guidance to the Court. These provisions are reproduced below:
Openness order
(7) The court may make an openness order under this section in respect of a child if it is satisfied that,
(a) the openness order is in the best interests of the child;
(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and
(c) the child has consented to the order, if they are 12 or older.
Same
(8) In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent, to comply with the arrangement under the openness order.
[59] Openness was not defined under the predecessor legislation: Child and Family Services Act. See Catholic Children’s Aid Society of Toronto v. S.-K., 2016 ONCJ 242.
[60] It is now defined under the CYFSA at s. 179:
“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”)
[61] Section 179(2) of the CYFSA confirms that an openness application is determined based on the best interests of the child.
[62] The purpose of an openness order is the preservation of a "beneficial and meaningful" relationship for the child, while supporting the child's security in his adoptive family: Catholic Children's Aid Society of Toronto v. M.M., 2012 INCJ 440,, at para. 198.
[63] "Openness" connotes some contact post-adoption between a child and a member of the child's biological family. The legislation does not specify or limit what type of contact is contemplated in openness arrangements, but the purpose of the openness provisions is clear: to facilitate a child's development in his adoptive home by providing a link for the child to his past and heritage. This is a very different purpose than that of an access order: Native Child and Family Services of Toronto v. W.-H. (K.), 2007 ONCJ 169, at para. 14.
[64] In B.R. v. K. R. and Simcoe Muskoka Child, Youth & Family Services [2017] ONSC 5402, Justice McDermot was hearing a motion for summary judgment as to whether the birth mother’s claim for openness would be dismissed or whether there was a genuine issue for trial. In dealing with this issue, he reviewed the case law on openness. He stated at paras. 31 to 34:
[31] A review of the case law as provided to me by counsel indicates that the criteria for access for a Crown wardship order differ with the criteria for an openness order. That results from the fact that a request for adoption shifts the nature of the best interests of the child. While a Crown wardship order is intended to provide for the protection of and permanency of the arrangements for the child for the foreseeable future, adoption is for the purpose of ensuring that the adoptive parents successfully become the child’s new family. The primary concern is the success of the adoption itself. Therefore, in making an openness order, the court must consider whether openness would interfere with the success of the proposed adoption of the child. In such a contest, the interests of the biological parent requesting openness are secondary to the interests of the adoption succeeding.
[32] As pointed out by counsel, when a Crown wardship order is granted and the court considers whether access would be meaningful and beneficial, the court can consider the ongoing relationship between the mother and the child as adoption may not be a consideration at the time Crown wardship is granted. Accordingly what is being preserved when a Crown wardship order is granted with access is the preservation of the parental relationship between the child.
[33] Adoption is different. It is basically a negative process which effectively cuts out the biological parents as operative parents of the child. The adoptive family is now the “forever family” and any openness order has to be structured to meet the interests of permanency and the success of the adoption. That is quantitatively different from maintaining an ongoing relationship between parent and child in the face of a Crown wardship order.
[34] The case law has attempted to list the criteria necessary for the granting of openness in an application such as the present one. These include the following, all of which are applicable to this case:
The access must be both meaningful and beneficial to the child: see s. 143.1.2(6)(b) of the CFSA.
Although this wording is similar to the wording set out in s. 59(2.1) of the CFSA[5], as noted above, the interests being protected in an openness case are entirely different from those considered for access after Crown wardship. Because of this, the fact that access was granted after Crown wardship does not mean that openness would be meaningful and beneficial after adoption: see N.P.T.S. v. Catholic Children’s Aid Society of Toronto, 2016 ONCJ 242 at para. 27.
Openness cannot be confused with access. Openness is a different form of contact from access as the relationship that previously existed between the child and his or her biological parents now becomes vested in the adoptive parents. Openness is therefore not for the purpose of maintaining the original parent child relationship: see N.P.T.S. at paras. 32 and 34. The relationship being maintained must be such as will not undercut the adoptive parents’ home or stability of that home: see s. 145.1.2(5) of the CFSA and N.P.T.S. at paras. 36 and 38.
The focus on “meaning and beneficial” has to be from the perspective of the child. The meaningfulness of the relationship is not how meaningful it is to the parent but how meaningful it is to the child: see Re Proposed Openness Order for S.M., 2009 ONCJ 317 at subparagraph (2) of para. 17.
The measure of the best interests of openness is the “now relationship” and not a future relationship. As stated by Katarynych J. in Re Proposed Openness Order for S.M., at para. 17(6), “If the present benefit and present meaningfulness are not evident at the time of the hearing there is no discretion to make an order that gives opportunity for future benefit or future meaningfulness to the child.” [emphasis hers]
Deference must be given to the views of the prospective adoptive parents. This is because openness must be concerned with the success of the proposed adoption and the comfort level of the adoptive parents with the proposed contact with the birth parents is therefore paramount: see Native Child and Family Services of Toronto v. J.E.G., 2014 ONCJ 109 at para. 59 and L.M. v. Valoris enfants et adultes de Prescott-Russell, 2014 CSON 2921 at para. 78.
[65] In Native Child and Family Services and J.E.G. & D.C. 2014 ONCJ 109, Justice Penny states at para. 84 that after an adoption order is made, the parent-child relationship becomes vested in the adoptive parents: “Thus is not the parent-child aspect of the relationship that is being continued post adoption by way of an openness order. See Re. S.M. 2009 ONCJ 317, [2009] O.J. No. 2907.”
[66] At para. 89 she emphasized the importance of the adoptive home and “an openness order should not leave a child ‘straddling his old’ and the ‘new’ life in a manner that disinclines him to root himself in his adoptive life.”
[67] A full review of the law is set out in Re Proposed Openness Order for S.M., 2009 ONCJ 317. Some points are as follows:
- At para. 188, the Court stated that is was “important not to ask too much too quickly from adoptive parents”;
- At para. 189: “The openness arrangement cannot be permitted to veer off onto a path where the child is essentially serving the needs and interests of his biological parents”;
- At para. 200: “The Act requires the court to be satisfied that an openness order will “permit the continuation of [the] relationship”;
- At para. 262: “There is a qualitative difference between a Crown wardship order and an adoption order. Much more is taken away by adoption. What in a relationship is left for preservation by an openness order may be only a sliver to those who make decisions for children. It is may a very important sliver to the child. In the end, there is likely considerable benefit even in a sliver, viewed through the long lens of an ever maturing child.”
[68] In Children’s Aid Society of Toronto v. J. G. 2020 ONCA 415, the Ontario Court of Appeal confirmed that “the child’s best interests are clearly not static”. (para. 51)
[69] The Court of Appeal refers to para. 74(3) (i) (ii) (iii) and (iv) and finds that these provisions “demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.” (para. 52).
[70] The Court of Appeal endorsed the principle that in considering the best interests of a child, the court should consider all relevant factors including past, present or future considerations. “There is no need for a court to confine itself to past or present circumstances in conducting its analysis”. (para. 65)
[71] The benefits of adoption are set out in Children’s Aid Society of Peel Region v. O. (W.), 2002 CanLII 46211 (ON CJ), [2002] O.J. No. 1099 (C.J.) as adoption creates exclusive and binding legal relationship, a permanent home and inheritance and devolution of property rights apply.
[72] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal at 2020 ONSC 4993, Justice Sherr was dealing with the following facts: two children were removed by the Children’s Aid Society of Toronto (the society) from the mother’s care on July 28, 2017 and had been living since then with the paternal grandparents.
[73] The society sought an order for an extended society care and placing the children in the final care and custody of the paternal grandparents and that the paternal grandparents could obtain documentation for the children and to travel with them outside of Canada, without anyone’s consent.
[74] Although the hearing was not an openness hearing, some of the observations made by Justice Sherr are helpful in my analysis. A summary of Justice Sherr’s observations are as follows:
a) It is very important for children to know their story, their history and where they come from.
b) Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.
c) It can help build a child’s identity – to know who they are.
d) It can help a child be more secure in where they’ve come from and where they are going. It might provide the child with a greater sense of security moving forward.
e) It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.
f) It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.
g) It definitely promotes self-esteem and can help meet the emotional needs of the child.
h) It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.
i) It allows the adoptive family to reinforce the child’s ability to understand their story and their history.
Analysis
[75] Firstly, it is agreed by the parties that there should be an in-person openness order.
[76] For the reasons that follow, the Court is satisfied that
(a) the openness order is in the best interests of the child; and
(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child.
[77] With a minimum of in-person openness contact, the connection is kept, distinction between access and contact is preserved and manageable for the adoptive parents and allows for expansion in the future.
[78] The minimum contact will allow the child to ask questions of his birth father and paternal grandmother when he is older.
[79] The child’s emotional needs will be met while ensuring that he continues a secure and stable permanent home. This will provide the stability that he deserves.
[80] The connection as noted in the consent terms of the order allows for other contact via email updates twice per year and also the child can communicate twice a year with updates when he is older.
[81] In determining the number of in-person openness contacts the child should have with his birth father, the Court will consider s. 179(2) of the CYFSA which sets out the following factors when dealing with his best interests.
(a)consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
[82] The child is 2.5 years old. He has speech delays and is not at an age where he can express his wishes and preferences;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c);
[83] The Court order of Justice Tellier found that the child was not a First Nations, Inuk or Metis child.
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
[84] The child’s physical, mental and emotional needs have a significant impact in the determination of his best interests.
[85] He is a special needs child whose needs are currently being addressed by the adoptive parents.
[86] Both adoptive parents testified with respect the child’s status at the time of his placement in the home and the strides that they have made in various aspects of his health.
[87] He has been connected to various services in the community as listed above including physiotherapy, speech therapy and assessors.
(ii) the child’s physical, mental and emotional level of development,
[88] The child has been diagnosed with global development delay and the adoptive parents have been advised that there may be other health issues that may arise in the future, including autism.
[89] His occupational therapy assessment will determine whether he will require an occupational therapist.
[90] His development will depend on the ability of his adoptive parents to meet his needs by attending appointments, learning skills to assist the child in his development and applying those skills, following up with professionals, attending to the child’s regular medical/dental appointments, ensuring he has appropriate stimulants in his life including socialization, activities and learning new skills.
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
[91] The birth father and the adoptive father are both of Haitian descent. The child will be exposed to his Haitian culture in his adoptive home.
[92] The adoptive parents are of Christian faith as requested by the birth father.
[93] The child will be exposed to French, English and Creole which are the languages spoken by his birth father.
[94] Through the adoptive father, the child will have a connection to his Haitian roots.
[95] The adoptive father spoke of the family eating Haitian food, speaking French and attending local Caribbean festivals.
(iv) the child’s cultural and linguistic heritage,
[96] As discussed above, the adoptive parents share the languages of the birth father.
[97] The adoptive father speaks to the child in French and the adoptive mother speaks English to the child.
[98] As discussed above, the adoptive father shares the same cultural background as the birth father and embraces his Haitian culture along with his wife.
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
[99] The CYFSA emphasizes the shift of the focus from a working on a parent and child reunification and maintaining and preserving the integrity of the birth family during the protection application to a focus on the child developing a relationship with the adoptive family and achieving a sense for the child that he is grounded in his new family.
[100] The child has been with the adoptive family since October 2019 and he has shown improvement in language, (increase of his vocabulary), improvement in his gait and his left kidney has been monitored.
[101] He has regular physiotherapy and medical monitoring.
[102] He is described as a playful, engaging and lovable little boy who may be shy at a first meeting but can interact in an age appropriate way.
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
[103] Although the child did not recognize his birth father at the December 2020 contact, he had regular visits with his father up to the adoption placement.
[104] Regular contact between the child and his birth family will allow him to maintain an emotional tie to them.
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and
[105] The child has been with the adoptive parents since October 2019 and their care has enabled the child to develop and they have made great strides in reaching out to the appropriate services to assist the child.
[106] A disruption of that child’s care would not be in his best interests. Meeting those needs is a priority.
(viii) the effects on the child of delay in the disposition of the case.
[107] Unfortunately, there has been a delay in the finalization of this openness applications including the court delays due to the pandemic, the parties’ attending two mediation sessions and the settlement conference.
[108] It is also unfortunate that from the time that the child was placed with the adoptive parents to the time the child saw his father again, 14 months had elapsed. That amounts to almost half of the child’s life during which he did not see his birth father.
[109] The child is doing well in the adoptive home having only been in one previous placement in the previous foster home.
[110] The child has never resided with the birth father or paternal grandmother and hence was never cared for or nurtured on a full-time basis by them.
[111] The father had one visit per week until the spring of 2019 and the maternal grandmother once or twice per month since the fall of 2018 when she learned of his birth.
[112] Given the considerations set out above, a visit once per month would not strike the right balance between the child’s connection to the birth family while encouraging him to bond with his adoptive family.
[113] The philosophy of the openness order is as follows. The extended society care provides for a permanent stable loving home for the child and the focus moves from reuniting the birth family to doing whatever is necessary to ensure that the adoptive placement succeeds and the child bonds with his new family and he is able to move on to live a healthy full life.
[114] An openness order should focus on the best interests of the child and supporting a healthy attachment, permanency and stability with the adoptive family.
[115] Such an order is to maintain a connection to their genetic and biological family, to ask questions, obtain information and seek answers about their life history. The openness contact includes the adoptive family meeting and spending time with the birth family members to support the child with his understanding through various stages of development.
[116] The visits involve the adoptive parents so that the adopted child can feel secure that they are there for him.
[117] Pursuant to s.197(8) of the CYFSA, the Court must consider the ability of the prospective parents to comply with an openness order.
[118] The adoptive mother stated that the adoptive family could manage three in-person openness contacts per year.
[119] The adoptive father believed as he and his wife were involved in the educational courses to prepare themselves for adoption that there would be a maximum of three visits per year.
[120] I find that the adoptive parents are capable and have the ability to comply with a minimum of three times per year in-person openness contacts between the child and his birth father.
[121] As stated by the Ontario Court of Appeal, in reviewing best interests, the court must look to the future development of this child. I do not place great weight on the fact that the child did not recognize his birth father in the visit in December 2020 when he had not seen him for 14 months.
[122] Regular visits during the year, especially as the child ages, will allow the child to maintain a connection with his birth family.
[123] Accordingly, the Court finds that it is in the child’s best interests that he has a minimum of three in-person openness contacts with this birth father. His birth paternal grandmother may attend.
Conclusion
[124] The child, DMH, shall have a minimum of three in-person openness contacts with his birth father, H.F., each year. The visits may include Child’s birth grandmother, M.L.L.
Justice Adriana Doyle
Released: January 19, 2021
COURT FILE NO.: FA-18-34-1
DATE: 2021/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017 c. 14, Sched. 1.
AND IN THE MATTER OF M.H.L., Applicant
BETWEEN:
H.F. Respondent (Applicant in his own Application)
– and –
M.L.L. Respondent
– and –
D.S. Respondent
– and –
Children’s Aid Society Respondent
REASONS FOR JUDGMENT
Doyle J.
Released: January 19, 2021