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 Family 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.
(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.: FC-11-1819
DATE: 2022/06/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: L. F., Applicant
and
The Children’s Aid Society of Ottawa, Respondent
BEFORE: Shelston, J
COUNSEL: Mr. Nahum for the applicant
Ms. MacDougall for the Society
HEARD: April 27, 2022
ENDORSEMENT
sHELSTON J.
Overview
[1] The applicant, L. F., is the biological maternal grandmother of the two children, namely L., and J., the center of this litigation. The applicant seeks an order extending the statutory timeline to allow her to file a new openness application regarding her two grandchildren.
[2] In February 2013, the children who had been living with the applicant under a supervision order, were removed from her care for having permitted an unapproved contact with their birth mother. On November 21, 2013, Justice MacKinnon found that an order for Crown Wardship was in the children’s best interests and granted the maternal grandparents, and the mother, supervised access with the children once a week.
[3] The grandparents appealed that decision based on the question of whether the children fell within the definition of an Indian or native person under the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA”). On October 30, 2014, the Divisional Court granted the appeal and remitted the issue to Justice MacKinnon to take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the children’s cultural identity. On December 3, 2015, Justice MacKinnon continued to find that an order for Crown Wardship with access to the maternal grandparents and the mother once a week was in the children’s best interests. Furthermore, Justice MacKinnon ordered that the access right holder should be the adults so they would be able to seek openness in the event of an adoption placement.
[4] The grandparents appealed once again Justice MacKinnon’s decision, and on October 28, 2016, the Divisional Court dismissed the appeal. The grandparents sought leave to appeal to the Ontario Court of Appeal, which was dismissed on January 27, 2017.
[5] In August 2017, an adoptive family had been approved for the children. A Notice of Intention to Place a Child for Adoption and a Notice of Termination of Access were served on the mother and maternal grandparents on August 22 and 23, 2017, respectively.
[6] On September 14, 2017, the applicant sought leave to file a Status Review Application with respect to the Crown Wardship orders, seeking to have the children placed in their full-time care. On October 6, 2017, Justice Blishen dismissed the motion after which the children were placed with the adoptive family.
[7] On January 8, 2018, the applicant brought a motion to extend the statutory timeline set out in s. 145.1.2 of the CFSA, to permit her to file an application for an openness order. On January 18, 2018, Justice Audet dismissed the motion based on her finding that there was no jurisdiction under the CFSA or the Family Law Rules O. Reg. 114/99 (“FLR”) to extend the statutory timeline and that she refused to exercise her parens patriae jurisdiction on the specific facts of this case. The applicant did not appeal that decision.
[8] Despite the dismissal of the applicant’s motion, the Children’s Aid Society of Ottawa (“the Society”) arranged for a mediation process between the adoptive parents and the applicant, with the participation of the Society and the Office of the Children’s Lawyer (“OCL”). As a result of the mediation, an openness agreement was reached and signed by the adoptive parents on October 23, 2019, and the maternal grandmother on November 19, 2019, which provided, inter alia, that the applicant would have face-to-face contact with the children two or three times per year, telephone calls from the children to the applicant at least once a month, that the adoptive parents would email the applicant regarding the children’s health, development, education, activities, and interests twice per year in February and August, and in the event the agreement requires modification, the parties may attend another mediation.
[9] The applicant alleges that since the commencement of the Covid-19 pandemic, the adoptive parents have breached the openness agreement by not accommodating the two or three in-person visits with the children per year, their failure to have the children call the applicant at least once per month over the past two years and that the adoptive parents have not shown to be reasonable and flexible in accommodating video chat visits or phone calls. The applicant admits that she received two emails per year, updating her on the children’s health, developments, educations, interests, and activities with photographs.
[10] The applicant indicates that she has no issues regarding many of the provisions of the openness agreement but raises the following concerns:
a) In 2020 and 2021, she did not have the two or three in-person visits with the children, and that there are no efforts by the adoptive parents or the Society to offer virtual visits.
b) The applicant expects the Society to cover cost for makeup visits in 2020 and 2021.
c) The applicant has not received a telephone call, at least once per month, from the children in 2020 or 2021.
d) The adoptive parents have never called the applicant in the event that the children were not stable enough for a phone call with her but do provide updates via email.
e) The adoptive parents have not shown to be reasonable, or flexible, in rescheduling virtual or in-person visits.
f) The openness agreement provides that as the children age, their individual views and preferences will be taken into consideration and the applicant is concerned that that is not being respected by the adoptive parents.
g) Despite sending letters and gifts to the children for their birthdays and Christmas, the applicant complained that she has never received any confirmation that they received or liked them.
h) The applicant believes the adoptive parents are maliciously keeping the children away from her and creating stories as to why the children cannot speak to her on the phone or have video chat visits.
[11] Since the commencement of the Covid-19 pandemic, the applicant had virtual visits with both boys on three occasions: on July 21, on October 1, and on November 17, 2020. By March 2021, the applicant expressed her concerns about her lack of contact with the children. The issue of returning to mediation was discussed but was not pursued as the adoptive parents were not in favor of the OCL lawyer meeting with the children privately. The applicant continues to receive emails from the adoptive parents as per the openness agreement.
[12] The Society advises that the adoptive parents have indicated that they are prepared to continue to send the applicant photos and email updates about the children, that they will continue to provide the children with any cards or letters that the applicant sends to them and that they agree with obtaining a P.O. box for items to be sent directly to that address.
[13] The applicant states that it is in the best interests of the children to remain in close contact with her, as she is their maternal grandmother and they have formed a strong bond. Furthermore, she states that it is important that the children’s stay connected to their family roots, that she is attempting to schedule access visits with her grandchildren, that she wishes to be accommodated for the missed visits due to Covid-19 and seeks an order that the openness agreement be respected and enforced by this Court.
Analysis
[14] The applicant concedes that there is no provision in the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA”) that would permit the court to extend the statutory timeline. In her decision dated January 18, 2018, Justice Audet found that was no jurisdiction under either the CFSA or the FLR, to extend the timeline.
[15] The applicant submits that the Court should use its parens patriae jurisdiction to extend the statutory timeline in the circumstances of this case. This issue was argued before Justice Audet, who reviewed the scope of the parens patriae jurisdiction and concluded that while a court may, in the appropriate circumstances, use that jurisdiction to extend the statutory timeline, she was not prepared to do so because of the protracted litigation which precluded the children from achieving permanency and she considered the fact that the adoptive parents were willing to enter into an openness agreement with the applicant.
[16] I agree with the statement by Justice Audet, at paragraph 11 of her decision, where she sets out the circumstances where a court may exercise its parens patriae jurisdiction as follows:
[11] At para. 30 of B. (A.C.) v. B. (R.), the Court of Appeal stated that assessing whether parens patriae should be exercised is a “very fact specific exercise.” The modern view is that this exercise typically fits within one of the following traditional scenarios:
i. Where there is an unintentional legislative gap: see e.g. A.A. v. B.B., 2007 ONCA 2 at para. 27. This gap can be direct or indirect: see e.g. M.D. v. L.L., (2008), 2008 CanLII 9374 (ON SC), 90 O.R. (3d) 127;
ii. Where the child is in danger: see e.g. A.A. v. B.B., at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.);
iii. In a judicial review of the exercise of statutory power by an administrative authority: see e.g. Beson v. Newfoundland (Director of Child Welfare), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716); or
iv. Where it is necessary to achieve the paramount objective of the applicable legislation: see e.g. A.A. v. B.B., at para. 40.
[17] The applicant now seeks that the court extend the timeline to file an openness application, using its parens patriae jurisdiction, based on the failure of the adoptive parents to adhere to all of the terms of the openness agreement. The applicant seeks an order enforcing the terms of an openness agreement on the adoptive parents like an openness order.
[18] Pursuant to the s.194(4) of the CFSA, an openness order may be made by a court if the court 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 following entities and persons have consented to the order:
(i) the Society,
(ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made,
(iii) the person with whom the Society has placed or plans to place the child for adoption, and
(iv) the child if they are 12 or older.
[19] The CFSA recognizes that an openness agreement may be reached by adoptive parents, before or after an adoption, regarding children and sets out the parameters for any such agreement to include the following:
a) an openness agreement may be made by an adoptive parent of a child and, in this case, a birth relative. s. 212 (1)
b) an openness agreement may be made at any time before or after an adoption order is made. s. 212 (2)
c) an openness agreement may include a process to resolve disputes arising under the agreement or with respect to matters associated with it. s. 212 (3)
d) where the views and wishes of the child can be reasonably ascertained, they shall be considered before an openness agreement is made. s. 212 (4)
[20] In Native Child and Family Services of Toronto v. W. H. (K.)., 2007 ONCJ 169, the court made an order for Crown Wardship of a child and determined that there would be no order for access. The court noted in paragraph 57, footnote 7 the following:
[7] An openness order may be varied or terminated before an adoption upon application by the Society or the respective adoptive parents, and after an adoption, upon application by the Society, the adoptive parents, order, with leave of the court, by the person permitted to communicate with the child. See 145.2(1) and 153.1(1). The Act contains no provision for a court to enforce, vary or terminate the provisions of an openness agreement, although the agreement can provide provisions for alternative dispute resolution.
[21] In J.A. v J.B., 2011 ONCJ 726, the birth parents had brought a motion for access, which was denied in child protection proceedings where their children were made Crown Wards without access after the children had been adopted. The court stated at paragraph 44:
[44] “Openness agreements are apparently more user-friendly for the birth parent. They may be entered into before or after adoption. However, the agreement is not ostensibly enforceable as a court order is enforceable”.
[22] In Children’s Aid Society of Toronto v. D. D., 2018 ONSC 4743, the court stated at paragraph 27:
[27] There is a provision in the CFSA governing openness agreements (s. 153.6(1)), which are not court orders, but rather agreements which are voluntarily entered into by the parties: K.F. v. Children’s Aid Society of Ottawa 2018 ONSC 364 at paragraph 12. However, the birth mother has no right to apply to any court for an openness agreement after adoption, and the issue is not before the application judge.
[23] The purpose of an openness agreement is to facilitate communication and to maintain existing relationships. An openness agreement is not a court order and is not enforceable as a court order. It is a voluntary agreement entered into by the adoptive parents with specifically designated individuals to ensure the connection between the children and, in this case, the maternal grandmother. The applicant had 30 days from August 23, 2017, to file an application for openness. She failed to do so. Her request to extend the timeline was denied by Justice Audet. The applicant did not appeal that decision. Now, more than four years after her initial request was denied, the applicant again seeks to extend the timelines.
[24] These children have been in the care of their adoptive parents since October 2017. In January 2018, Justice Audet considered the lack of permanency as a significant factor in dismissing the applicant’s motion. As of June 2022, the children still have not achieved permanency in their lives. The adoptive parents were under no obligation to enter into an openness agreement with the applicant. They did so voluntarily to maintain the relationship between the children and their maternal grandmother. They still are prepared to maintain that relationship on a voluntary basis. In my view, the voluntary agreement cannot be forced upon the adoptive parents.
[25] The applicant’s motion, if granted, will extend the litigation for these children. I do not find that the specific facts of this case justify the Court exercising its parens patriae jurisdiction to permit the applicant to file an application for openness. I find that the openness agreement is not enforceable as a court order.
[26] Based on these findings, the applicant’s motion is dismissed.
Released: June 21, 2022 Justice Shelston
COURT FILE NO.: FC-11-1819
DATE: 2022/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: L. F., Applicant
AND
The Children’s Aid Society of Ottawa
BEFORE: Shelston J.
COUNSEL: Mr. Nahum, for the Applicant
Ms. MacDougall, for the Society
ENDORSEMENT
Shelston J.
Released: June 21, 2022