T.H. v. Huron-Perth Children’s Aid Society, 2021 ONCJ 457

W A R N I N G The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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. ONTARIO COURT OF JUSTICE CITATION: T.H. v. Huron-Perth Children’s Aid Society , 2021 ONCJ 457 DATE: 2021 08 24 COURT FILE No.: City of Stratford C670/21 B E T W E E N : Applicants, T.H. and Z.J.H.

— AND — Respondents Huron-Perth Children’s Aid Society and C.H. and Z.H. Before Justice K.S. Neill ENDORSEMENT August 24, 2021 S. Wisking……………………………..OCL counsel for the applicant T.H. and Z.J.H. A.Tymec………………………………………………..counsel for the respondent CAS S.Gordon……………………………OCL counsel for the respondents C.H. and Z.H.

Neill J.: [ 1 ] There are two openness applications before the court brought by siblings: one brought on March 17, 2021 by the children C.H., born […] , 2017 and Z.H., born […], 2018; and one brought on March 31, 2021 by the children T.H. , born […] , 2014 and Z.J.H., born […] , 2015. [ 2 ] The biological parents of all four children are A.C. and J.H. (“the parents”). [ 3 ] Although the openness orders between the siblings is proceeding on consent, it is important to outline the statutory pathway to this end result as the sequence in which extended care orders are made can have significant consequences for the legal rights of children.

I note that when the matter was before the court in the proceedings pursuant to

Part V of the Child, Youth & Family Services Act (“ CYFSA ”) the children were not represented by legal counsel. [ 4 ] On December 30, 2019, a final order was made on consent that the children, C.H. and Z.H. are in continuing need of protection pursuant to s. 74(2)(

n) of the CYFSA . C.H. and Z.H. were placed in extended care of the Huron-Perth Children’s Aid Society (“the Society”). The order provided that C.H. and Z.H. have a right of access to their parents a minimum of three face-to-face visits each year subject to the children’s best interests and responsible wishes, with C.H. and Z.H. being access holders and the parents being access recipients. The order further provided that C.H. and Z.H. have a right of access to each other and their older siblings, T.

H. and Z.J.H. with each of C.H. and Z.H. to be holders and T.H. and Z.J.H. to be recipients. [ 5 ] The proceedings with respect to the older siblings, T.H. and Z.J.H. proceeded to trial. Following a trial, on May 25, 2020, these children were placed in the extended care of the Society, with access to their parents a minimum of three face-to-face visits each year, subject to the children’s best interests and responsible wishes, with both the children and the parents to be holders and recipients.

The order further provided that the children have a right of access to each other and their younger siblings C.H. and Z.H., with all of the children being access holders and recipients.

[ 6 ] The parents have appealed the order of May 25, 2020, and the appeal is not yet resolved. However, the parents have not appealed the order with respect to the inter sibling access.

The access order made on May 25, 2020 was not stayed as part of the appeal under s. 121, with the exception of the automatic 10 day stay, and therefore the trial decision of May 25, 2020 was in effect at the time the Notices of Intent to Place were served. [ 7 ] At the time of trial, all four children had been in the same foster home together for almost a year, and the foster parents were offering a long-term placement for the children. However, as of March 2021, all four siblings transitioned to another foster home, who are willing to adopt them.

The younger siblings, C.H. and Z.H. have been placed on adoption probation, and although the foster parents are willing to adopt T.H. and Z.J.H., given the outstanding appeal T.H. and Z.J.H. are not legally free for adoption. [ 8 ] Prior to placing C.H. and Z.H. for adoption, the Society served the required Form 8D.2 Notices of Intention to Place for adoption on the parents and siblings, and as the children were found to be Metis, a Form 8D.3 was also served.

An openness application was not brought for openness with the band as no First Nations band or community was identified. [ 9 ] The requirement to serve a Notice of Intent to Place for Adoption when there is an access order to a child who has been placed in extended Society care is outlined in s.195 of the CYFSA , which states as follows: s. 195 (1): This

section applies where, (

a) a society intends to place a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(

c) for adoption; and (

b) an order under

Part V (Child Protection) is in effect ( my emphasis ) respecting a person’s access to the child or the child’s access to another person. (2) : In the circumstances described in subsection (1), the society shall give notice to the following persons: 1. Every person who has been granted a right of access under the access order. 2. Every person with respect to whom access has been granted under the access order. [ 10 ] In the case of C.H. and Z.H. who are the children that the Society intends to place for adoption, the extended society care order was made on December 30, 2019.

Although an access order was also made on December 30, 2019 that C.H. and Z.H. have a right of access to their older siblings, T.H. and Z.J.H. , once an order was made placing T.H. and Z.J.H. in extended society care on May 25, 2020, pursuant to s. 105(4) of the CYFSA , the sibling access order to T.H. and Z.J.H. made on December 30, 2019 was terminated. However, that access order was re-made on May 25, 2020 so that all siblings continued to have a right of access to each other with the children being holders and recipients.

If the order of May 25, 2020 had not provided for a right of access between C.H. and Z.H. and the two older siblings, then they may not have been able to commence openness applications. [ 11 ] Therefore, it is important to determine what access order is in effect at the time when the Notices of Intent to Place for Adoption are served. In this case, the extended care order for C.H. and Z.H. was made on December 30, 2019, and the access order in effect was the order of May 25, 2020.

Pursuant to the order of May 25, 2020, all of the siblings are access holders and recipients therefore all of the siblings had the right to bring openness applications. 1 [ 12 ] Although ultimately this matter proceeded on consent, both counsel for the children in this case, Ms. Gordon and Ms. Wisking (as well as the Office of the Children’s Lawyer) wanted to highlight the concerns when extended care orders with access are made at different times, and whether or not siblings, who have

Part V access to children before the court, should have a right to notice of the extended care proceeding as it could potentially impact their access rights. [ 13 ] On the basis of the 34M.1 Consent, and as the potential adoptive parents of C.H. and Z.H. have filed an affidavit sworn June 22, 2021 indicating that they are in agreement with the proposed openness order between the siblings and that they have an ability to comply

with such an order regardless of the outcome of the appeal, I find that it is in the best interests of C.H. and Z.H. that this order be made, and that it will permit the continuation of a relationship between C.H. and Z.H. with their older siblings that is beneficial and meaningful to C.H. and Z.H. ORDER: [ 14 ] Final openness order to be made in accordance with paragraph 5(1) to (3) of the 34M.1 consent dated June 22, 29 and July 5, 2021. Released: August 24, 2021 Signed: Justice K.S. Neill