Parental Access for Crown Wards: The “highly adoptable child”
When a child is made a crown ward, how much access should the biological parent have? While Ontarian courts have had to determine this issue in numerous child protection cases, the analysis was complicated by recent statutory amendments.
In 2011, there was a significant statutory amendment made to the Children and Family Services Act, RSO 1990, c C11 [CFSA]. Previously, an access order barred a crown ward adoption. Now, pursuant s. 141.1.1(1) of the CFSA, children who are crown wards with an access order can be adopted.
In Children’s Aid Society of Toronto v SB, 2014 ONCJ 518 [SB 2014], Justice Sherr explored the relationship between access and openness orders. Openness orders, which creates an open adoption, mandates post-adoption contact between the adopted child and their biological family. In SB 2014, Justice Sherr awarded extensive access to a “highly adoptable child” (170).
First Child brought into care: Ma.B
S.B.’s first child, Ma.B., was brought into care and final custody was awarded to Ma.B.’s paternal grandparents. When S.B. gave birth to Ma.B. at the age of 15, she entered into
A Voluntary Service Agreement (“Agreement”) with the Children’s Aid Society Toronto (“the Society”) soon after Ma.B. was born (SB 2014, 14). In a Voluntary Service Agreement the individual who has custody of the child agrees to receive supportive services, such as parenting courses, offered or facilitated by the society. The society will continue to monitor the family’s progress and any protection concerns the society. The Society was immediately involved as S.B. had been on their radar. Sadly, children protection is often intergenerational; the Society had been involved with S.B. when she was a child. There had been protection concerns stemming from the conflict between S.B. and her mother.
Regrettably, the Voluntary Services Agreement between the Society and S.B. was discontinued when S.B. decided she was unable to follow the agreement. The plan had been for her and Ma.B. to live with Ma.B.’s paternal grandparents (“C.’s”).Unfortunately, the relationship between the C.’s and S.B. broke down. In September 2010, Justice Spence made a temporary order placing Ma.B. in temporary care and custody of the society. The Society eventually placed Ma.B. in the C.’s care and the C.’s were awarded full custody in August 2012, pursuant s. 57.1(1) of CFSA (30).
Second Child brought into care: M.B.
S.B. gave birth to her second child, M.B., in 2011. M.B. was apprehended from the hospital (SB 2014, at 26). The Society is more likely to apprehend at birth when the mother has had previous children apprehended by the Society. In SB 2014, the Society brought an application that M.B. was a child in need of protection, pursuant s. 37(2)(b) of the CFSA. The key issue was whether M.B. should be made a crown ward, and if so, whether S.B. should be granted access.
Should M.B. be made a Crown Ward?
M.B. was found to be a child in need of protection and was made a crown ward. There was a litany of child protection issues. First, Ma.B. was found to be in need of protection “just two months before [M.B.] was born” (SB 2014, 50).
Second, S.B. was inconsistent in exercising access with M.B.When parents choose to not exercise access, the child-parent relationship is hampered by the lack of contact.
Third, S.B. lied to the Society about obtaining prenatal care. The importance of this is three-fold. One, S.B. was a teenager who could have benefited from obtaining prenatal care. Two, failing to obtain prenatal care fits the narrative that S.B. has difficulty identifying what is in her child’s best interest. Lying to the Society about obtaining prenatal care shows a lack of insight into the Society’s protection concerns. Three, lying about obtaining services erodes the Society’s trust in the parent. The Society is less likely to enter into less intrusive measures into the family life if they are not confident in the parent’s candour. Other child protection concerns included S.B.’s criminal charges, her history of addiction, a history of domestic violence, and her transient housing predicament.
Statutory Change: Open to Openness
Open adoption has been occurring in private adoption for decades. However, public adoptions, where the child who was being adopted was a crown ward, did not allow for open adoptions until 2006. In 2006, s. 153.6 of the CFSA allowed for openness orders to be entered into before adoption. The purpose was to facilitate communication and maintain a relationship between the child and their biological family. Under the 2006 statutory regime, only the society could bring an application for an openness order. Significantly, the CFSA was amended in 2011 to allow for “access holders” to bring an openness application. Thus, parents or other family members who had an access order were granted standing to bring an openness application. Without an access order, they cannot bring an openness application.
Should S.B. be granted Access to M.B.?
The test for granting access when a child is being made a crown ward are set out in s. 59 (2.1) of the CFSA. First, the relationship between the person and the child must be “beneficial and meaningful” to the child. In Children’s Aid Society of the Niagara Region v MJ, (2004) 4 RFL (6th) 245 (ONSC), Justice Quinn defined beneficial and meaningful as, “significantly advantageous to the child” (45). Justice Quinn also held that the court should only consider the existing relationship between the parent and child, not what the relationship might be in the future.
Second, the order for access cannot impair the child’s future opportunities for adoption. In Children’s Aid Society of Toronto v CJ, 2014 ONCJ 221, Justice Murray provided a non-exhaustive list of why potential adoptive parents might be deterred from adopting. The potential adoptive parent could face future litigation. If a parent has an access order they are able bring an openness order; the adoptive parent is uncertain whether there will be future litigation. As well, if there is litigation, the outcome is unknown. An openness order could mandate frequent in person contact, or merely an exchange of cards. In essence, the potential adoptive parents are in the dark about what strings are attached to the adoption when they start the process. Further, the litigation around openness, will delay adoption. Lastly, the adoptive parents will need to potentially interact with difficult members of the biological family.
In SB 2014, the C.’s were considering adopting M.B. They had full custody of her older half-sister, Ma.B. The C.’s had a poor relationship with S.B. Further, S.B. did not have access to Ma.B. If the C.’s adopted M.B., and S.B. was granted access to her, M.B. could bring an openness order. This would lead to a peculiar predicament. S.B. did not have access to Ma.B. If the C.’s adopted M.B., they would have both of S.B.’s children, and she would have the right to contact the C.’s only about her youngest child, rather than both children. This could prove to be an untenable predicament for the C.’s. It was determined, in a previous order, that it was not in Ma.B.’s best interest for S.B. to have access. Even an openness order that contained minimal contact between M.B. and S.B. could inadvertently allow S.B. to have contact with Ma.B. While denying an access order is not the same as a criminal no-contact order, the judge had made a finding that access was not in Ma.B.’s interest.
In SB 2014, Justice Sherr awarded extensive access. He ordered unsupervised access on Saturday’s between 10am to 4pm (177). Openness orders often contain less access than the access order. As Justice Sherr noted in S.B. 2014, “The mother should be aware that the case law sets out that if the child is placed for adoption that any future openness order will likely result in her having less time with the child than has been granted in this [access] order” (178) However, the more extensive the access order, the greater the likelihood that the openness order will contain more frequent contact. Justice Sherr’s reasoning for providing the access, while novel, was insupportable. Justice Sherr was willing to grant a considerable amount of access because M.B. was “very adoptable” (163). M.B. was a “healthy, sociable, loving, [and] active” child who was meeting all of her development milestones (163).
Justice Sherr interpreted s. 59 (2.1) of the CFSA in an unorthodox manner. The purpose of s. 59 (2.1) is to ensure that access does not undermine adoption, a permanent home for the child. The focus is not on the child, but on whether the access itself creates a barrier to being placed in a permanent household. Under Justice Sherr’s framework, assuming in both instances that access is meaningful and beneficial, a parent with a ‘healthy’ child could receive more access than a parent with a child with a disability. For example, if M.B. had Fetal Alcohol Spectrum Disorder (“FASD”), she would not be “highly” or “very” adoptable. If she had FASD, should she have less access to her biological mother, S.B.? Justice Sherr’s to attempt to maintain a meaningful connection between M.B. and S.B., while admirable, provides an unprincipled framework for determining access and openness.
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