Court File and Parties

Court File No.: FC-18-473-0001 Date: March 28, 2024 Superior Court of Justice - Ontario

Re: JS, Applicant And: NH and The Children’s Aid Society of the Niagara Region, Respondents

Before: MacNeil J.

Counsel: M. Zalev and K. Warren – Agents for the Applicant J. Farrer – for the Respondent, The Children’s Aid Society of the Niagara Region V. Workman – for the Office of the Children’s Lawyer

Heard: January 11, 2024 (via Zoom videoconference)

Reasons for Decision

Introduction

[1] The Applicant makes this motion seeking an order extending the deadline to apply to the court for an openness order under s. 196(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA” or “the Act”), pursuant to the court’s parens patriae jurisdiction.

[2] The Children’s Aid Society of the Niagara Region (“the Society”) consents to the relief requested.

[3] The Office of the Children’s Lawyer (“the OCL”) does not oppose the court exercising its parens patriae jurisdiction in the particular circumstances of this case, given that the child wants ongoing contact with the Applicant and would not be prejudiced by the requested order. However, the OCL submits that the court must first be satisfied that the facts of the case support the use of parens patriae and that the applicable legal test is met.

Background

[4] Pursuant to the Final Order of The Honourable Justice J.R. Henderson, dated April 20, 2021, the child’s mother and father were deemed to be access holders to the child and the child was deemed to be an access holder to each of his parents.

[5] On August 18, 2023, the Applicant was served with notice of the Society’s intention to place the child for adoption and that the access order would terminate upon such placement.

[6] As access holders, the child and the Applicant were both advised that they had the right to make an openness application within 30 days, the time limit set out in the CYFSA.

[7] The Applicant worked with her lawyer to deliver her openness application within the 30-day time limit. She signed the application on September 15, 2023, and it was served on the Society on September 18, 2023. Unfortunately, the application was not issued by the court before it was served.

[8] The Applicant’s openness application was issued on October 10, 2023, which is outside the statutory time limit. The issued application was served on the Society and others on October 29, 2023.

[9] The child filed his own openness application seeking continued contact with the Applicant within the prescribed time. Further, the Applicant has brought a status review application requesting that the child be returned to her care.

The Motion

[10] By this motion, the Applicant asks the court to extend the time for her to apply for an openness order to October 29, 2023, the date the issued application was served. The Applicant submits that this court can and should exercise its parens patriae jurisdiction to extend the time for an access holder to apply for an openness order under s. 196(1) of the CYFSA in appropriate circumstances to: (i) fill an unintentional gap in the legislation; and (ii) achieve the paramount objective of the Act. The Applicant contends that it would not be in the child’s best interests to prevent the Applicant from being able to apply for an openness order and thereby deprive the court of the important evidence and submissions that she can offer the court to help it fulfil the CYFSA’s paramount purpose of promoting the child’s “best interests, protection and well-being”, solely because of a minor and inadvertent procedural irregularity.

Issues

[11] The issues to be determined on this motion are:

(a) Should the court exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application because there is an unintentional gap in the legislation?

(b) Should the court exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application because it is necessary to achieve the paramount objective of the CYFSA?

The Law

The Legislation

[12] Section 1(1) of the CYFSA provides that “[t]he paramount purpose of this Act is to promote the best interests, protection and well-being of children.”

[13] Pursuant to s. 191(1) of the CYFSA, when a child is placed for adoption, every order respecting access to the child is terminated.

[14] After a child is placed for adoption, they may maintain some degree of contact with their birth families and/or other individuals with whom they had significant relationships prior to the adoption by way of an openness order or agreement. Section 196 of the Act provides for the process for applying for an openness order where an access order is in effect.

[15] Pursuant to s. 196(1), an access holder may, within 30 days after receiving notice of a society’s intention to place the child for adoption, apply to the court for an openness order. Section 196(2) requires that a person making an openness application is required to give notice of the application to the society, the child, and/or the person who will be permitted to communicate with or have a relationship with the child if the order is made.

[16] Section 196(4) provides that a society is not to place the child for adoption before the 30-day time period under s. 196(1) has expired, unless every person who is entitled to do so has already made an application for an openness order. Sections 196(5) and (6) require a society to inform the potential adoptive parents of any openness application that has been made, the requested relief, and the outcome of the application.

[17] Section 196(7) of the Act provides that the court may make an openness order 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.

[18] There is no provision to be found in the CYFSA that grants the court authority to extend the statutory 30-day timeline set out in s 196(1) of the Act. This is acknowledged by the parties.

Parens patriae jurisdiction

[19] Parens patriae is the power of the court to act in the stead of a parent for the protection of a child: A.C.B. v. R.B., 2010 ONCA 714, at para. 23. The power of parens patriae does not confer supplemental jurisdiction to rewrite legislation or procedure: S.D.G. v. A.S., 2015 ONSC 752, at para. 55.

[20] The court in Johnson v. Athimootil, [2007] O.J. No. 3788 (Ont. S.C.J.), at para. 29, summarized the parens patriae jurisdiction as follows:

The parens patriae jurisdiction originates from the Court of Chancery’s wardship over, initially, mentally incompetent individuals and later also children: E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388 at 407-12. Generally, the power is reserved for cases in which there is legislative gap and is not exercised to modify existing statutory schemes: see Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716. However, in the unanimous judgment of the Supreme Court of Canada in E. (Mrs.) v. Eve, supra, LaForest J. wrote as a clarification to the general rule at 411, “It continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit.”

[21] In E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at para. 73, LaForest J., for the Supreme Court, explained that the parens patriae jurisdiction is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves” and “it is to be exercised in the ‘best interest’ of the protected person, or again, for his or her ‘benefit’ or ‘welfare’”. LaForest J. further held, at para. 77:

The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a Court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

[22] A review of the jurisprudence shows that the parens patriae jurisdiction can be exercised in the following circumstances:

(a) where there is an unintentional legislative gap;

(b) where a child is in danger;

(c) in a judicial review of the exercise of statutory power by an administrative authority; and

(d) where it is necessary to achieve the paramount objective of the applicable legislation.

See K.F. v. Children’s Aid Society of Ottawa, 2018 ONSC 364, at para. 11; L.F. v. Children’s Aid Society of Ottawa, 2022 ONSC 3682, at para. 16; and A.A. v. B.B., 2007 ONCA 2, at paras. 27 and 40.

[23] Assessing whether parens patriae should be exercised is a “very fact specific exercise”: A.C.B. v. R.B., 2010 ONCA 714, at para. 30.

Analysis

(a) Should the court exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application because there is an unintentional gap in the legislation?

Position of the Applicant

[24] The Applicant argues that there is an “unintentional gap” in the Act because there is no provision that addresses whether the deadline to apply for an openness order can be extended, either on consent or by court order. She submits that the court must consider whether the Act was intended to be a complete code and, in particular, whether it was intended to preclude the court from ever extending the 30-day deadline to apply for an openness order, no matter what the situation.

[25] It is the Applicant’s position that, upon considering the stated purposes of the Act, it is clear that the Legislature’s intention is to facilitate a relationship between a child and their biological parents, to the extent that the relationship is in the child’s best interests. Given the specific wording of s. 196(1), the conclusion should be reached that the CYFSA was not intended to preclude the court from extending the deadline for commencing an openness application in appropriate circumstances. To interpret the Act in a way that restricts the court’s inherent powers in this regard would thwart the clear legislative intent.

Discussion

[26] The Applicant argues that the legislation does not provide for the factual situation before me – where a party intended to apply for an openness order within the 30-day time period but failed to have the application issued by the court within that time period. While this is an unusual and sympathetic fact situation, there is no gap in the legislation requiring this court to intervene. The Legislature used clear language in providing for the 30-day time limit. The Legislature was also clear in not enacting a provision permitting the extension of that time limit.

[27] In K.F. v. Children’s Aid Society of Ottawa, 2018 ONSC 364, the court was determining whether it had jurisdiction to extend the 30-day statutory period set out in s. 145.1.2 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the CFSA”), what is now s. 196 of the CYFSA, in order to allow the maternal grandparents of two children who were placed for adoption, to bring their own application for an openness order. The children’s mother had served her openness application and the grandparents had filed a response to it, in which they sought their own openness order. At para. 12, Audet J. held that she “would not rule out the possibility that a court might use its inherent parens patriae jurisdiction to extend the statutory timelines set out in s. 145.1.2 … in appropriate circumstances”. However, she held that she would not do so in the case before her “given the protracted litigation and numerous appeals that have precluded these children from achieving permanency, and in circumstances where the adoptive parents have clearly confirmed their willingness to voluntarily enter into an openness agreement with the grandparents”.

[28] In K.F., at para. 9, Audet J. also commented:

It is unclear whether a legislative gap argument would be successful in Ontario, given our legislative scheme for openness orders. However, in compelling fact situations, courts can be willing to look at a variety of options to secure ongoing contact with important members of the child’s community …

[29] I find that the CYFSA provides a complete legislative framework as it relates to openness orders. The Act contemplates an openness application being brought within 30 days. The purpose of the legislation is to promote the welfare of the child. It is reasonable there should be a deadline as set out in s. 196(1) by which an access holder must act, as setting such timelines is likely to benefit the welfare of the child. The deadline can be reasonably met, as is indicated by the fact that the child was able to apply within the 30-day time limit. The fact that there is no provision for extending that time limit does not mean there is a legislative gap. It means that the access holder must do what needs to be done within the time prescribed. The Applicant, as an access holder, was capable of meeting the 30-day time limit if the necessary steps had been taken. It was only due to inadvertence that the deadline was not met.

[30] In U.(J.) v. Alberta (Regional Director of Child Welfare), 2001 ABCA 125 (Alta C.A.), the applicant failed to file a copy of the notice of appeal in the Provincial Court, as was required under the Child Welfare Act, SA 1984, c C-8.1. The applicant asked the court to exercise its parens patriae jurisdiction to allow the appeal to proceed despite this non-compliance with the filing requirement. The Alberta Court of Appeal held that it does not have the jurisdiction to waive a substantive requirement like a statutory limitation period or a statutory filing requirement: at para 6. The Court of Appeal also held that the failure of the legislature to enact a provision to waive the statutory filing requirement “does not amount to a gap in the legislation” permitting the court to act, stating, at para. 7:

… It cannot reasonably be argued that the legislature has overlooked the need to provide a provision to waive that which it expressly mandates. If it was intended that such requirements could be overridden, the mandatory aspect of the legislation would be superfluous. So the court should not presume that the absence of such a provision is the result of oversight.

[31] I agree with and adopt the Alberta Court of Appeal’s approach on the parens patriae issue, as set out in U.(J.), in the case before me.

[32] The 30-day time limit set out in s. 196(1) reflects a decision by the Legislature to the effect that, when a Notice of Intention to Place for Adoption is served, any application for an openness order sought by an access holder must be made promptly because the rights and responsibilities of other persons and the Society can be affected by the application. Those persons/entities, including the child who is to be placed for adoption, cannot be left in a state of uncertainty indefinitely. There must be closure and finality, so that individuals can move on and the child can have stability.

[33] The Applicant further argues that a different section of the Act, s. 194, does not impose a 30-day limit on a society from applying for an openness order where there is no access order in place, and so this results in unequal treatment under the Act as it relates to access holders. I am not persuaded by this argument. Rather, I am satisfied that the differentiation in the processes under s. 194 and s. 196 makes sense. In a s. 194 situation, where there is no access order in effect, there are no access holders who can act for themselves and apply for an openness order. Setting a 30-day limit for an application to be made by a society in such circumstances could unduly foreclose potential openness orders for relationships that may come to light before an adoption order is made. This would not be in the best interests of the child. In my view, there is nothing unfair about there being no 30-day time limit set out in s. 194.

[34] The s. 194 process also differs from the procedure set out in s. 196 in that consent is needed. That is, by s. 194(4), the court may make an openness order under that section 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 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.

Because of this, in my view, there is no need for a 30-day time limit to apply for an openness order since everyone who would be affected will have consented and the adoption process will not be delayed.

[35] Finally, it is noted that a society is bound by a 30-day limitation under s. 197 of the Act. That section provides that, where a society intends to place for adoption a First Nations, Inuk or Métis child who is in extended society care, the society has 30 days after notice is given to apply to the court for an openness order, as are the other persons served with the notice of intention to place the child for adoption.

[36] I conclude that there is no unintentional gap in the legislation requiring the court to exercise its parens patriae jurisdiction on behalf of the child respecting the issues raised. By s. 196, the child, as an access holder, had the same entitlement to apply for an openness order as the Applicant. In the record before me, there is no evidence that the child’s openness application will not afford the necessary and appropriate protection for the child, especially given that the child is seeking openness with the Applicant and so she will have the ability to respond and participate.

[37] Given my finding that there is no unintentional gap in the legislation, there is no ability for the court to exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application on that ground.

(b) Should the court exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application because it is necessary to achieve the paramount objective of the CYFSA?

Position of the Applicant

[38] The Applicant submits that, if the court does not agree that there is a gap in the legislation, it may still exercise its parens patriae jurisdiction to achieve the paramount objective of the CYFSA to “promote the best interests, protection and well-being of children”. The Applicant submits that the court should extend the time for her to apply for an openness order for the following reasons:

(a) to ensure that all necessary parties, including the Applicant, can put forward fulsome evidence and submissions to help the court determine what arrangements would be in the child’s best interests, and how best to continue the relationship between the Applicant and the child;

(b) to ensure that the Applicant’s “strong case for an openness order” can be heard on its merits;

(c) to ensure that all parties receive procedural fairness and avoid the appearance that the outcome might have been different because of a minor procedural mistake; and,

(d) to ensure that the identified purposes of the Act are met.

[39] The Applicant submits that K.F. is distinguishable since there has not been the same “protracted litigation” that has impacted the child’s stability and permanency. The Applicant served her “unissued” openness application within the 30-day time limit, she has already served the issued application, and the brief extension requested will not delay the matter or prevent it from moving forward expeditiously.

[40] The Applicant submits that having the opportunity to make her own application will allow her to make submissions in a more comprehensive manner than if she is merely answering the child’s application. If the Applicant is only able to participate in the proceedings as a “respondent” to the child’s openness application, there is a serious question in law as to whether she would be able to seek a different openness order by way of her answer than what the OCL has requested. Further, if the child’s application is withdrawn for any reason, then the Applicant is left with no ability to pursue an openness order.

Discussion

[41] I am not satisfied that the exercise of parens patriae is necessary in order to achieve the paramount purpose of the CYFSA, that is, to promote the best interests, protection and well-being of the child.

[42] While one may have considerable sympathy for the Applicant and her situation, there is no evidence before me that it is necessary for this court to act for the protection of this child. As the court stated in Eve, I must consider if the child needs protection and ensure that “[t]he discretion is to be exercised for the benefit of that person, not for that of others.” In this situation, the rights of the child are protected. The child is an access holder and therefore was notified of his entitlement to apply for an openness order under s. 196(1). The child has legal representation through the OCL. The child has, in fact, applied for an order seeking openness to the Applicant. If that order is granted, it will support ongoing contact between the Applicant and the child. The Applicant is a party to the child’s openness application and, therefore, is entitled to file an answer to the application. I do not see that there are any further rights of the child’s that need protecting through the actions of the court.

[43] The Applicant argues that in K.F., the court commented that each person seeking an openness order must bring their own application. I find K.F. to be distinguishable. In that case, it was the parents who made the openness application to which the grandparents were responding, not the child. Here, it is the child who has made the application seeking a continued relationship with the Applicant, to which the Applicant will be responding and so there is a direct connection and/or relationship between the two that must necessarily be examined and considered by the court. The child’s rights and best interests will be considered in the specific context of having an openness order as it relates to continued contact with the Applicant. This case is unlike the situation in K.F. where the grandparents’ relationship with the children was not necessarily put in issue by the fact of the parents’ openness application.

[44] Based on my finding that there is no anticipated risk of injury to the child here, it is not necessary for this court to exercise its parens patriae jurisdiction to extend the time for the Applicant to bring an openness application in order to achieve the paramount objective of the CYFSA.

Conclusion

[45] The resort to a parens patriae jurisdiction should be infrequent and it should be limited to cases of necessity. I do not consider it necessary that the court protect the interests of the child in the case before me by making an order for the relief requested by the Applicant.

[46] In the result, the application for the court to exercise its parens patriae jurisdiction is dismissed.

[47] Costs were not requested by any of the parties. No costs are awarded.

MacNEIL J. Released: March 28, 2024