Openness Orders Are Not To Be Confused With Access

S. (N.P.T.) v. Catholic Children’s Aid Society of Toronto, 2016 ONCJ 242 

Background

This decision by Justice Carol Curtis of the Ontario Court of Justice provides an excellent overview of openness orders under the Child and Family Services Act (CFSA).

In August 2014, Justice Otter made an order for crown wardship of P.S’s two children, Ni and N. At the crown wardship trial, the maternal grandmother and her partner suggested that it was their intention to adopt both children but the children’s mother would always have a place in their life. At the trial, Justice Otter granted continued access by the mother to both children citing that access was both beneficial and meaningful to the children.

In November 2014, the Catholic Children’s Aid Society of Toronto (CCAS) served both the mother and the children with a Notice of Intention to Place for Adoption. Under s. 143 of the CFSA, this meant that any access between the mother and the children would end.

In response, the mother and the children filed applications for openness under s. 145.1.2 of the CFSA. Each child brought one application and the mother brought two applications regarding each of the children. The children’s counsel advised the court that the children wanted to see their mother and enjoy their visits with her. However, the maternal grandmother and her partner advised CCAS that they did not consent to an openness order.

After pleadings were exchanged in the openness application, the parties agreed to allow the mother to visit the children. However, shortly after this arrangement was put in place, the children developed extreme behavioural issues after visits with their mother and had to be reassured that they were in their forever home. It was clear that the mother and the proposed adoptive family had an extremely contentious relationship that undermined the family unit and the role of the proposed adoptive parents. Thus, the question before the court was whether an openness order with the children’s natural mother was in the best interests of the children.

Analysis

Justice Curtis referred to the legal test regarding openness and thoroughly reviewed the legislation and case law. The crux of the analysis is Justice Curtis’ review of the differences between access and openness.

Justice Curtis set out that after a child has been a crown ward, access is simply a means to preserve the relationship between the parent and the child. However, this relationship must provide both a meaningful and positive benefit to the child.

Justice Curtis then cited recent amendments to the CFSA. Effective September 2011, an access order will be terminated upon an adoption but the party with the access order may apply for an openness order. However, Justice Curtis emphasized the fundamental difference between an access order post crown wardship and an openness order post adoption.

Justice Curtis maintained that openness is not access. Rather, openness is intended to provide some contact between a child and a member of the child’s biological family post-adoption to facilitate the child’s development in his or her adoptive home.

Justice Curtis then referred to the factors to consider when making an openness order. First, the court must consider whether the child’s best interests are to be served as the openness order cannot interfere with the child’s ability to root himself within the adoptive family. Second, the success of an openness order depends on the views of the prospective adoptive parents, and whether the biological parent is willing to support the child in his adoptive home.

With the aforementioned factors in mind, Justice Curtis held that the mother should not have assumed that the crown wardship access order would continue under an openness order. Further, Justice Curtis noted that the proposed adoptive family provided the children with a stable home environment and the children have demonstrated a strong attachment to the proposed adoptive parents. Yet, the mother continued to undermine the permanence and the nature of the role of the adoptive parents. Justice Curtis held that more frequent contact between the children and their mother would provide the mother with an opportunity to undermine the permanency of the adoption. Ultimately, this would have a negative impact on the well-being and stability of the children.

Justice Curtis urged that an openness arrangement is not intended to serve the interests of the biological parent. Rather, the court’s primary concern is the best interests of the children. Justice Curtis concluded there may be a time when the mother can have contact with her children without undermining or destabilizing the new adoptive family. However, at this time, openness with the children’s biological mother was not in the best interests of the children.

Justice Curtis dismissed the children’s motion for a temporary openness order and held that the mother shall not bring a separate motion for a temporary order for openness.

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