J.A. v. J.B., 2011 ONCJ 726

Brantford Registry No. F370/08T DATE: 2011·XI·23 CITATION: J.A. v. J.B. , 2011 ONCJ 726 ONTARIO COURT OF JUSTICE BETWEEN: J.A. and J.A. Applicant — AND — J.B. and H.A. Respondent — AND — CHILDREN’S AID SOCIETY OF BRANT Proposed Intervenor Before Justice Lawrence P. Thibideau Reasons for Judgment released on 23 November 2011 Tammy Simpson ............................................................................................................. for the Applicants J.B. and H.A. ..........................................................................................................

Respondents in person Stacy Neill .......................................................................................................for the Proposed Intervenor JUSTICE L.P.

THIBIDEAU: [ 1 ] The issue addressed in this motion is whether or not, given the amendments to the Child and Family Services Act in November of 2006, the court has jurisdiction to make an access order for birth parents, who were denied access in the child protection proceedings resulting in the two children H.A. and T.A. being made crown wards without access under the Child and Family Services Act, after which the children were adopted. [ 2 ] The applicants J.A. and J.A. are the biological parents of the two children. The respondents H.A. and J.B. are the adoptive parents.

The CAS of Brant was granted intervenor status by an order dated 25 March 10, for the purpose of arguing this issue. [ 3 ] A short history of this proceeding is as follows:

1) By way of an application pursuant to the Children’s Law Reform Act dated September 8, 2008 the applicants requested custody of and access to the two children. Essentially the matter proceeded as if the custody request has been abandoned. This application was commenced after the children were made Crown wards with no access on June 24, 2005 and were legally adopted by order of the court of February 6, 2008. Originally, in their documentation, the biological parents took an aggressive stance with respect to access,.

However for most of the proceeding the biological parents have taken the position that they will only interact with the children if permitted by a court order. Since the proceeding began there has been no contact with the children, awaiting a decision of the court. 2) On October 28, 2008 the court made a temporary order, ostensibly on consent, that the biological parents have access to the two children for four hours weekly.

That order was appealed resulting in a Superior Court of Ontario order granting a stay with respect to the October 28, 2008 order with the matter being returned to this court for further consideration. The Children’s Aid Society of Brant sought intervenor status pursuant to Rule 13.02 and by a written judgment of March 25, 2010 such intervenor status was granted. The Society opposes the request of the applicant biological parents as do the respondent adoptive parents.

THE SOCIETY POSITION [ 4 ] To support its position the Society argues the following: 1) Given the amendments to the Child and Family Services Act in November of 2006 the court does not have jurisdiction under s. 21 by the Children’s Law Reform Act to make an access order to birth parents who were denied access in the child protection proceedings under the Child and Family Services Act, after the child has been adopted.

In effect those amendments change the existing law with respect to birth parent access to an adopted child. 2) Any contact with adopted children by a birth parent post adoption is the proper subject of an openness agreement or order and not an access order. The purpose of these two types of contact is very different. 3) The law treats inter-sibling contact post adoption differently than birth parent or other relative contact, which may continue to be the case in the context of an openness agreement. Openness agreements being non-enforceable, openness orders being enforceable.

COMPARATIVE LEGISLATION OVERVIEW [ 5 ] The Society began its argument by referencing legislation and case law from other provinces in Canada to provide an overview and to acclimatize the court with respect to the considerations which militate against an access order being granted with respect to an adopted child. One way or another all provincial jurisdictions permit birth parent access after adoption in limited circumstances. [ 6 ] The traditional differing approaches can be illustrated by the state of the law in British Columbia and Alberta.

In British Columbia by Section 50(1) of the Child, Family and Community Service Act [RSBC] 1996

Chapter 46 when a child is placed in continuing custody of the Director (Crown Ward) the Director consents to the child’s adoption and must notify a person who has an access order to be the child of the intention to consent to adoption at least 30 days before the consent is given. Any existing access order is able to be continued if three criteria are met under

Section 56 of the Act, if the access order is: 1) In the child’s best interests; 2) Consistent with the plan of care and; 3) Consistent with the wishes of a child twelve years of age or over.

[7] The British Columbia courts have interpreted the previous legislation, Family and Child Services Act SBC 1980 and thecurrent Act to say that a de novo access order is not in the best interests of a child and should not be granted where there is an ordergranting permanent custody to the superintendent, taking the child from the parent permanently, when the criteria for the order is thesame – best interests of the child. The two orders cannot logically co-exist together. In fact an order of permanent custody to thedirector precludes jurisdiction to award access under the custody law legislation.

British Columbia (Superintendent of Family and Child Service) v. D.S. (BC CA), 46 RFL (2d) 225 (BCCA). This is the situation where there are parallel proceedings for permanent custody to the Director and a request for access by a biologicalparent. Succinctly, the logic is that a court granting permanent custody to the Director and an order of access to a parent would bemaking contradictory orders based upon the same criteria.

The vehicle used by the birth parent for the failed access bid was the BritishColumbia equivalent to s. 21 of the CLRA in Ontario. [8] However in British Columbia the same cannot be said of access orders existing at the time that the permanent custody order infavour of the Director is made. Pursuant to Section 37(1) of the Adoption Act RSBC 1996 c. 5, the birth parents ceased to have anyparental rights or obligations with respect to the adopted child, save and except for a parent jointly parenting with the adoptive parent.

However by Section 38(1) of the Act the court may, using the child’s best interests test, continue or vary an existing access order underthe appropriate British Columbia legislation.

However, Section 38(1) is phrased in such a way to lead to the conclusion that the defaultposition is termination of access and the onus is on the proponent to demonstrate to the court that the best interest of the child require acontinuation of an access order. [9] With respect to children in permanent care at least, the British Columbia Court of Appeal has confirmed that the considerationsset out by the Supreme Court of Canada in New Brunswick (Ministry of Health and Community Services) v. L.(M.), 1998 Can LII 800(SCC) continue to be the proper considerations in applying the best interests of the child test.

Codification in Child, Family andCommunity Services Act, R.S.B.C. 1996, C.46 of the previous un-codified right of a court with parens patriae jurisdiction (not theProvincial Court) to make access orders for a child in care did not expand the availability of such orders. In New Brunswick v. L.(M.)supra, the Supreme Court of Canada expressly dealt with the issue of whether or not a provincial court could make an access order at thesame time as it made a permanent guardianship or crown wardship order.

The considerations enunciated by Justice Gonthier were asfollows: After a permanent guardianship order is made access becomes a child right and the parental right to access ceases; There is no inherent inconsistency between a permanent guardianship order and an access order; However access in such circumstances is the exception and not the rule; The consideration of preserving family ties is not a consideration in granting access unless all other relevant factors that make up the bestinterests of the child require that it be so; Adoption cannot be hampered by an existing right of access; Access should not be granted if it would negatively impact the physical or psychological health of the child. [10] For purposes of the facts of this case the overriding principle is that if adoption is more important than access for the welfare ofthe child and if adoption would be jeopardized, if a right of access were exercised, access should not be granted. [11] The Court in B.C. v.

D.S., supra, held that these various principles enunciated by the Supreme Court of Canada are notinconsistent with the provisions of the current legislation in British Columbia hereinbefore referred to, with the result that codification inthe current legislation has not enlarged or expanded parental right to access. [12] In jurisdictions like British Columbia the legislature has passed legislation that has given Courts jurisdiction to make an accessorder in conjunction with an order for permanent guardianship (in Ontario an access order with crown wardship), and even after a childhas been adopted, where there is an emotional bond between the child and the natural parent (not so in Ontario).

The legislation has beenjudicially interpreted to conform with the considerations set out in the Supreme Court of Canada decision New Brunswick v. L. (M.),supra. British Columbia (Director of Child, Family and Community Service v). A.M. 2007 BCSC 1039 CanLII

(SCBC) on appeal, para. 34; affirmed A.M. v. British Columbia (Director of Child, Family and Community Service) 2008 BCCA 178 [13] The emotional bond between parent and child has to be considered against the off-setting consideration that if adoption is moreimportant than access for the welfare of the child, and would be jeopardized if a right of access was exercised, access should not begranted. [14] The result in British Columbia has been a number of cases pitting the biological parent against the prospective or actualadoptive parent in relation to access to the child by the biological parent.

The overriding principle in determining the issue in each caseis the best interest of the child as interpreted by the courts pursuant to the appropriate legislation. See: Director of CFSC v. J.S. and A.L. 2010 BCPC 314 A.S. v. The Director Child, Family and Community, 2002 BCSC 722 , 2002 B.C.S.C. 722 Director v. S.G. 2005 BCPC 552 [15] Legislation in some Provinces like Alberta is similar to that in British Columbia, leaving open in a restricted way the issue ofaccess to a crown ward or to an adopted person. In Alberta, the Child, Youth and Family Enhancement Act R.S.A.

Chapter C-12 is thegoverning legislation. By Section 34(8) of the Act access may be granted to a permanent guardianship child, but by Section 34(12) ofthe Act no order of access shall be made unless the court is satisfied that the order will not interfere with the adoption of the child. BySection 72(9) of the Act an adoption order terminates an access order or agreement.

However even in a jurisdiction such as Albertawhere the legislation appears to mandate termination of parental rights including access rights once an adoption order is made, courtswith parens patriae jurisdiction have reserved that jurisdiction, although using it sparingly. The result is court ordered access apparentlyin conflict with express legislation. Re: M.Z.F. (Adoption) 2006 ABQB 99 para. 28 E.S.C. v. D.A.P. 1997 ABCA 285 , 32 R.F.L. (4th) 97 [16] The non-Ontario Provincial case law appears to fall into two camps.

Jurisdictions where there is express statutory authority forcontinuing on access after adoption and jurisdictions where the adoption legislation specifically prohibits continued access orders afteradoption; some reserving a parens patriae jurisdiction to deal with the issue in restricted circumstances. Those in the first camp likeBritish Columbia, New Brunswick and Newfoundland focus primarily on the adoption family, including the adopted child, and theirneeds as opposed to the needs of the biological parent seeking access.

Phrases like “the access is child centred and not parent centred”,and “the biological parent must not be able to sabotage the adoption through access,” are recurrent. [17] Much the same considerations apply in jurisdictions like Alberta and Manitoba which take a more restricted attitude, at least inAlberta, relying upon the courts inherent jurisdiction to override the plain wording of the legislation. [18] The overview of comparable legislation makes it clear that all jurisdictions recognize that inherent conflict, competing interest,and conflicting values between biological parents and adoptive parents risk the breakdown of the adoptive placement or harm to the childin a less than ideal adoptive placement where two sets of parents are present.

While various approaches are taken by the differentjurisdictions all are focused on this potential for harm to the best interests of the adopted child. [19] Certain universal principles are applicable when deciding birth parent access issues for an adopted child. The threads runningthrough the legislation and case law from various provinces are clear. The decisions on access by birth parents to children in theadoptive stream or finally adopted must be child focused, centring on the child’s best interests with the interests of the adults involvedbeing secondary.

The integrity and emotional health of the adoptive family takes precedence over the interests of the birth parentsseeking to maintain contact with a child. It is the new long-term family relationship in which the child will be emotionally engaged thathas a higher value than the maintenance of the old relationship. The adoptive family stands in a superior position to any interest in

maintaining previous family ties. The risk of interference with the adoptive placement and the development of emotional ties between the adopting parents and child, and the risk of sabotaging the adoption placement are pre-eminent considerations. The legislation and case law severely filters or restricts access by birth parents by simple mandatory prohibition and rare exercise of statutory or common law discretion by Judges. [ 20 ] However it is recognized that some contact between birth parents and a child may, on balance, considering the best interests test, be appropriate for the adopted child.

Older legislation sided heavily with the non-interference principle, discouraging birth parent contact. New legislation takes a less rigid view, thereby easing the restrictions on birth parent contact. [ 21 ] In some jurisdictions like British Columbia and Alberta the model is court ordered contact within the four corners of the child’s best interests considerations, with the default position being no contact by statute in British Columbia – the Adoption Act RSBC 1996

Chapter 5

Section 38 and the parens patriae jurisdiction in Alberta because no statutory right to obtain relief extending the old relationship by access or otherwise exists – Child, Youth and Family Enhancement Act R.S.A. 2000

Chapter C-12 s. 72(9) . [ 22 ] In Saskatchewan where a child has been placed for adoption or has been adopted existing birth parent right to access terminates and applications by a birth parent for such relief are not allowed – The adoption Act, 1998,

Chapter A-5.2 of the Statutes of Saskatchewan, 1998 as amended s. 15(1).

It is noteworthy that in Saskatchewan, unlike Ontario, there is an express prohibition in the adoption legislation forbidding use of child custody and access statute law. [ 23 ] The similarity of provincial legislation with respect to adoptable or adopted children and their connection with a birth parent emphasises the importance placed on safeguarding the success of the placement of the child and the new adopting family. [ 24 ] This restricted regime has been the subject of discussion for some years for a variety of policy considerations related to the child’s best interests in a wider sense.

Thus the move towards a model of post adoption child-birth parent contact that has attributes markedly different than traditional access – restricted by the requirement of adopting parent consent or veto, characterized by the concept of contract rather than the traditional concept of access, without all the rights that access implies. Thus the openness agreement legislation in various jurisdictions, including Ontario in 2006.

THE POSITIONS [ 25 ] It is in this context that the Society takes the position that the openness provisions of the amending legislation, particularly with respect to public adoption, has changed the existing regime with respect to birth parent access to adopted children so that such access is not available to a birth parent under the Child and Family Services Act, and is no longer available under the Children’s Law Reform Act .

The Society asserts that the Bill 210 amendments to the applicable portions of the Child and Family Services Act regarding adoption incorporated into the Act in 2006 have filled a gap with respect to continued involvement between a birth parent and an adopted child so that a collateral attack by way of sub-section 21(1) of the CLRA is no longer necessary.

In fact the 2006 amendments effectively preclude such collateral attack. [ 26 ] The birth parents assert that amendments to the Child and Family Services Act in 2006 do not change the existing law which permits birth parents in specified restricted circumstances to have access to an adopted child. The birth parents’ position is succinct.

Subsection 21(1) of the Children’s Law Reform Act which states – a parent of a child or any other person may apply to the court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child – is sufficient based on existing case law to open the access door for the matter to be heard on its merits. THE OLD REGIME IN ONTARIO [ 27 ] The birth parents concede an order for traditional access was not and is not available under the old or current legislation with respect to adoption contained in the Child and Family Services Act.

They accept this as so despite the fact that both parents did have informal “access” pre-adoption and for a period of time or approximately six months after adoption. The birth mother supported the adoption placement with the biological paternal grandmother and her partner because of a pattern of “access’ between the birth parents and the children which continued on after the adoption of February 6, 2008 for about six months. The birth mother asserts that the

discontinuance of “access” was linked to the birth of a third child for the birth mother in the summer of 2008. [28] The birth parents argue that while they are not “a parent” within the meaning of s. 21(1) because of the legal effect of theadoption having taken place, they are each “any other person” exercising a sub-section 21(1) right of action.

They rely on the pre-2006amendment case law that they argue provides three exceptions to the general rule that birth parents cannot have post adoption access: Exception 1 – when the natural parent establishes a relationship with the child after the adoption is made; such parent is “any otherperson” and may apply for custody or access to the child. That application would be determined in the child’s best interest based in parton the extent and nature of the established relationship. C.G.W. v. M.J. (1981) (ON CA), 34 O.R. (2d) 44 (Ont.

C.A.) Exception 2 – In the circumstances where assurances were given during the protection proceeding by the adoptive parents, that therewould be continued contact between them and the child after adoption, a cause of action lies under this sub-section. J.H. v. B.G. (1993) (ON CJ), O.J. No. 1497 (Ont. Prov. Div.) Exception 3 – In the circumstance where there is an existing access order for a non-ward child adopted by a collateral relative. S.R. v. M.R. and P.

J. (ONCJ) [29] The sole argument is that the applicants have established a relationship with the child post adoption in order to fit within thecase law based on the factual situation present. PRE-2006 CASE LAW [30] The Society does not argue on the merits whether the pre-2006 case law permitted post-adoption access, based on their primaryposition that the case law no longer applies. [31] The birth parents rely upon the pre-eminent case of C.G.W. v.

M.J., supra, to support their primary position that a postadoption relationship permits them to bring the action and have their request for access determined on a child’s best interests test,examining the nature and extent of the post-adoption established relationship. In that case the restrictive threshold test was enunciatedrequiring the birth parent to show a post-adoption relationship (quaere established after adoption or continued from a pre-adoptionrelationship as qualifying) before the court would consider access on the merits.

In that case the focus on the pre-adoption relationship,rather than the post-adoption relationship, proved fatal for the biological mother’s case. In this case to be decided the post adoptionrelationship was for six months, but was preceded by a lengthy post-apprehension and pre-adoption “access” to the children. The birthparents moved quickly after termination of “access” to bring this action. Clearly there was a continuation of a previous relationship ofsome significance, in time at least. Unlike the facts in A.L. v. B.A.M. and W.F.M.

(1993) CanLII 3050 (ONSC) in this case the birthparents do not wish to reassert their positions as primary parents and they have focused on the post-adoption time period, bringing theaction in a timely way. [32] In this case the birth parents are not able to take advantage of the case law represented by S.R. v. M.R. and P.J., (1995), supra,or R.C. and M.K. v. J.D.K., J.G.L. and J.B.,

(2006) ONCJ 198 CanLII, both of which follow a line of reasoning which permits a birthparent, in an adoption involving a birth parent with an existing access order, to have that access order continued after adoption. No suchexisting order for access is present here. [33] However the basic proposition that a track record of contact post-adoption can lead to the right to have an action before the

court pursuant to sub-section 21(1) of the CLRA even under the new regime may be able to be argued. See comments of Justice H.L. Katarynych in Re-Proposed Openness Order for S.M.,

(2009) ONCJ 317 at page 13 paragraph[18] 7. THE SUMMARIZED CASE LAW [34] The birth parents have satisfied the court that, absent other considerations, the existing case law permits them to have theaccess issue to be argued on its merits, based upon a sufficient minimal factual foundation supported by the filed material that they mayhave established a post-adoption relationship entitling them to an access order post-adoption. In the alternative, the three existingexemptions are not necessarily exhaustive.

Each of the three have arisen based upon specific factual circumstances viewed within thecontext of the best interests of the adopted child. A hybrid of facts situation, such as here, de facto access without formal order coupledwith post-adoption relationship may also be sufficient factual circumstance in the child’s best interest for an order going forward. Thismay be added to the exceptions to the presumption against adoption access currently in existence.

In social and psychological termswhat matters is an intended (on the part of the adoptive parent) involvement of birth parent with child, along with an actual involvement– a hybrid of exception two – intimated promise of continued involvement and actual post-adoption involvement, creating a fourth properexception.

EFFECT OF 2006 CFSA AMENDMENTS [35] The Society argues that the amendments incorporated into Bill 210 were purposeful and substantial, not only to create a newcategory of birth parent child contact, but to close off the use of post-adoptive access orders based upon fundamental policyconsiderations. [36] Openness orders became the vehicle for a continued relationship between a birth parent and a child for specific reasons. Thereis intended likelihood of increased permanency for children out of birth parent control and custody through changes to the adoptionprocess.

The general attempt is to make adoption a more frequent option for children who are Crown wards. Consideration is given toadopting parents. An openness order cannot be made after the adoption is final, s. 145.1 of the Act.

An openness agreement is just that– an agreement and cannot be imposed on a non-willing birth or adopting parent, s. 153.6 of the Act. [37] Provision for openness or contact between a child and a birth parent pre or post-adoption is intended to get rid of theimpediments to adoption that access orders have historically caused, creating flexibility to permit a child a new placement, butcontinuing a form of contact with a birth or previous psychological parent to minimize emotional upset for the child where appropriate. [38] “There are approximately 9,000 Crown wards in Ontario, 75% of them have access orders ... legislation today ... would removesome of the obstacles [to adoption] ... so that it is not black or white – either you have a family or you don’t ... so that there is agreementbetween the birth mother and the adoptive parents for some sort of contact or access, if agreed upon.” Hansard – Ontario Legislative Record, 6th of June 2005, Minister Borntrogianni, 14:10A - adoption. [39] The

summary of considerations that went into the legislative changes based upon Ministry representative statements in thelegislature are said to be these: 1) A need to make adoption more attractive to potential adopting parents by

a) Transferring permanent care children from non-permanent caregivers through Society placements;

b) Reducing the number of children who are subject to emotional and physical upset through placement changes while in care, averaging one move every two years;

c) To make the adoption system less rigid for a child and friendlier for the adoptive parent;

d) To maximize the situations where a child can thrive, by reducing situations where a child is trapped in the system. Hansard: Minister Statement June 6, 2005 [ 40 ] The Society puts the case that the need for continued contact between a child in the adoption process, or adopted, considered under the pre-2006 amendment case law is now sufficiently and fully protected by the new access and openness provisions of the C.F.S.A. as amended. Formerly the courts created certain restricted exceptions to the no contact policy inherent in adoption.

Pre- amendment, court intervention was the only way contact could be continued. Now through openness agreements and orders there is sufficient flexibility with respect to preserving an established contact that the field has been occupied, where previously it was not. From a substantive point of view a statutory path is open for continued contact. In interpreting the statute as amended it is logical to conclude that the recent amendments render the previous case law obsolete and contrary to public policy as set out in those amendments.

THE SUBSTANTIVE ARGUMENT [ 41 ] The preeminent facts in this case for this argument are the following: 1) A relative adoption, that is i.e. a non-consensual adoption of a crown ward by a birth relative; 2) Continued contact on an ad-hoc basis between birth parents and children; 3) No formal access order in place at time of crown wardship order, none subsequently. 4) The birth parents want contact; the adoptive parents do not. 5) There was pre and post adoption contact, but only post adoption contact is relied upon for an order under the existing case law. [ 42 ] Under the pre-2006 case law the establishment of a relationship (whether or not such a relationship already existed) after the adoption permitted consideration of the issue on the merits pursuant to

Section 21of the C.L.R.A. This was a process entirely under the control of the birth parents. It was a process instituted by them and continued through the court system by them. There was no veto power available to the adoptive parents or the Society that promoted and finalized the adoption. The resulting action is a contest between two sets of parents or parental figures, without Society involvement in a formal way. [ 43 ] The pre-emptive nature of the procedure is not present under the openness regime under the C.F.S.A.

Court authorized contact by an openness order has restrictions: 1) The child must be a crown ward and the subject of an adoption plan; 2) An existing access order under the C.F.S.A. precludes an order being made. If such an order exists it would have to be terminated for the openness action to proceed; 3) Only the Society may institute the openness order action.

A birth parent requires pre-approval of the Society and Society intervention to prosecute an openness claim; 4) Any opposition, from the child over 12 years of age, or the prospective adoptive parents, prevent the order sought from being made. 5) An openness order can be terminated at the request of the Society or the adopting parent. 6) After adoption the Society and the adoptive parents as of right may seek to vary or terminate an openness order. The birth

parents require leave of the court to do so, a screening device for birth parents seeking to vary or terminate. See: C.F.S.A. Openness Order s. 145.1, s. 145.2 and s. 153.1 [ 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 in enforceable. See: C.F.S.A. Openness Agreements s. 153.6 See: Native Child and Family Services of Ontario v. K.W.H. [2007] O.J. No. 1522 pg. 11 note 7. [ 45 ] It is unlikely that there is any other potential enforcement mechanism through any one of the following alternatives: 1) Family Law Act R.S.O. 1990 c. F. 3 as am.

Part IV Domestic Contracts; 2) Children’s Law Reform Act R.S.O. 1990 c. C. 12 as am.

Part III Custody Access and Guardianship; 3) General Contract Law. [ 46 ] By definition the agreement is a meeting of the minds between, in this case, adoptive parents and birth parents, precluding any court relief for the birth parents bringing the action based upon their

interpretation of what is in the best interests of these two children.

It would be difficult to establish a quid pro quo of benefits passing directly between the two sets of parents for enforceability of the contract. [ 47 ] The key elements of a birth parents’ action missing from the openness legislation are: 1) Ability to institute an action post adoption for relief without third party approval or instigation; 2) Enforceability of any agreement. [ 48 ] The Society position that the field is occupied by the new legislation and adequately substitutes for the old regime fails to take into consideration these two important considerations.

If the Society position is accepted there has been a fundamental change in the process. The former ability of the birth parents to access the courts for relief based upon their

interpretation of the best interest of the children has been removed.

In its place is a process which requires a consensual arrangement, or a non-consensual process for which a third party society makes the initial assessment of what is in the children’s best interests and then moves forward, or the court does a preliminary screening of the birth parents case before it proceeds. [ 49 ] The result is that the Society’s position supports an existing right of action being taken away from the birth parents by a substituted process where, in effect, the adoptive parents and / or the Society has a veto, including the Society’s veto with respect to access to the court. [ 50 ] It is admitted that there is nothing in the new legislation or the existing legislation which clearly and unequivocally terminates the old

Section 21 C.L.R.A. availability of court action for the birth parents. The new regime changes the rules to the clear detriment of the birth parents. The new regime is not simply an occupation of the field, it is a game changer. Existing birth parent rights are not subsumed into the new regime. The result is the substantive argument, by itself, is insufficient for the Society position to succeed. THE PROCEDURAL ARGUMENT – STATUTE

INTERPRETATION [ 51 ] The Society argues that in order to properly interpret the effect of the new provisions upon the old case law it is necessary to have regard to the principles of statute

interpretation. It is further argued that a proper consideration of all those principles should alter

the outcome. In properly interpreting those principles there is a context that must be taken into account. That context is as follows: 1) The legislative intent, borne out by comments in the legislature and the final legislation itself, amending the Act, is tomake adoption more appealing for prospective adoptive parents in order to reduce the number of children held in permanent care withouta permanent home. A complete regime for post adoptive contact between a birth parent and a child is now contained in the Child andFamily Services Act, eliminating the need for court intervention by circuitous route, for example, through

Section 21 of the C.L.R.A. 2) The amending legislation provides for an appropriate non-conflictual arrangement that promotes a healthy child centeredadoptive home while permitting appropriate birth parent contact. 3) The stated purpose of openness and the historical purpose of access are different and potentially contradictory. Forexample, openness orders and openness agreements are essentially consensual in nature, with defined limits for adoptive parent contact.

Access orders are not and risk undermining the parental authority of the adoptive parents. 4) Openness orders are intended to increase permanency and stability. Access orders are focused on a continuation of thepre-existing relationship between failed parents and a child. [52] The above is a concise

summary of a much more detailed argument of the Society position. [53] The Society argues that certain principles are to be used in determining the meaning of the provisions of a Statue as follows: 1) Look to purpose of legislation when interpreting it, not only when an ambiguity is present. Therefore

interpretationshould be consistent with legislative purpose.

Interpretation that frustrates the legislative purpose should be rejected. 2) Modern legislation is general and open texted. It no longer tries to foresee and provide for every contingency. 3) Legislative statements are evidence of legislative intent. 4) Statute

interpretation focusing on stability and permanency in a timely way is not compatible with an

interpretation thatcreates a never ending court process. 5) In the context of this legislation openness was chosen for post-adoptive contact, not access which is different. [54] Traditionally there were three approaches to the

interpretation of statutes. The purpose approach which focussed on construingthe terms of the statute to suppress mischief and advance a remedy. The literal or plain meaning Rule which required the use of clearsimple meaning of words used resulting in giving literal effect to words chosen, looking to object or remedy only if there was a doubt orambiguity as to meaning. This approach made the courts subservient to the legislature only intervening when absolutely necessary.

Finally there is the golden rule whereby the court is only to depart from literal meaning if to follow the literal meaning would result in anabsurdity. [55] These traditional approaches have now been subsumed into the modern rule whereby the literal method of construction prevailskeeping in mind the total context of the litigation which is crucial. The result is that words are interpreted in the context of the whole ofthe statute.* [56] Whatever was the former situation the law with respect to statutory

interpretation is now fixed and settled. In Elgner v. Elgner,2011 ONCA 483 Gillese, J.A., speaking for the court, stated the law as follows: It is trite law the modern approach to statutory

interpretation requires the court to read the words of a provision in their entire context andin their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament: [57] Similarly in Celging Corp. v. Canada (Attorney General) 2011 SCC 1 para. 21 Abella, J., approved of the approachtaken in Canada Trustco Mortgage Co. V. Canada, 2005 SSC 54 at para. 10, as follows: It has been long established as a matter of statutory

interpretation that “the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:

.... The

interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of

an Act as a harmonious whole. The words, if clear, will dominate; if not, they yield to an

interpretation that best meets the overriding purpose of the statute. [ 58 ] It is in this directed context that the amending provisions of the CFSA with respect to openness orders and agreements are viewed as to how they effect the current law with respect to birth parent access to an adopted child under s. 21 of the CLRA. [ 59 ] The comment of the Minister and Ministry officials make it clear that the intent of the amending legislation was to reduce the number of children with limbo status as Crown wards within the system and to promote adoption of these children by appropriate families.

Clearly there was a purposeful decision made that openness orders and openness agreements be employed to make the adoption process less emotionally damaging or straining for the adopted child, and to permit ongoing contact between adopted child and birth parent in a consensual arrangement participated in by the Society and the adopting parents to assist the child in having a feeling of life continuity, and to assist with practical issues like access to medical history information. The Society position is that the use of

section 21 applications by birth parents for access to an adopted child is inimitable to these goals. The birth parents take the opposite view. RESOLUTION [ 60 ] There is no difficulty here with internal consistency with respect to the wording of the statute. When looking at the provisions of the Child and Family Services Act only, the openness amendments to that act created a new regime for contact which is not in conflict with any other pre-existing provision of the Act.

The Society argues that the amending provisions are in conflict with the case law which has developed under a different Act, the Children’s Law Reform Act , and that that case law is inimitable to these new provisions regarding the procedure for openness or contact. In essence the Society argument is to the effect that these amendments represent a fundamental rethinking of the contact process between a birth parent and an adopted child much like the fundamental rethinking which went into the amended 1985 Divorce Act , considered by the court in Elgner v. Elgner , supra.

Is there a fundamental absurdity or inconsistency between the provisions of the CFSA and

section 21 of the CLRA as currently interpreted by the courts? [ 61 ] Consideration of the legislation using the directives provided by the Ontario Court of Appeal and the Supreme Court of Canada with respect to statute

interpretation, on the facts of this case, does not result in irreconcilable absurdity or inconsistency. [ 62 ] It is not necessarily inherent in the openness legislation that it be the exclusive vehicle to foster or contain birth parent contact. There is no express wording to that effect, as there is in the Saskatchewan legislation. The Society takes the position that legislative intent was that there be only one statutory vehicle for contact between a birth parent and adopted child. This view is certainly not present in the overt statements made by Ministry officials before the passage of the legislation.

In fact it is clear that one of the prime purposes of the legislation was to have in adoption friendly circumstances, contact between the birth parent and the adopted child based upon the child’s best interests. It does not necessarily flow that another parallel process via

section 21 CLRA applications is, of necessity, not in the best interests of the child. In fact the case law under

section 21, providing for limited, perhaps even unusual, access by a birth parent contrary to the wishes of an adopted parent have been decided expressly taking into account the best interests of the child. In effect those cases made the point that in some limited circumstances, on balance, the adoptive parent is not as in tune with the best interests of the child as the birth parent. [ 63 ] In attempting to arrive at a resolution that is contextual in nature certain principles of statute

interpretation still apply. Generally different statutes, not referring to each other, covering the same or very similar subject matter should be taken and construed together as one system unless the context otherwise requires. Driedger, The Construction of Statutes, pp. 131-132. Taken together both statutes promote different but parallel ways of achieving a similar result – contact between a birth parent and an adopted child. The Society would argue that the scheme of the openness provisions of the CFSA in context cannot be construed together harmoniously with the

interpretation placed upon

section 21 of the CLRA as previously interpreted by the courts. However, the context

is not as conflictual as the Society would have it. It is not illogical to come to the conclusion that where both of the parallel statutory procedures leading to contact have at their core the best interests of the child there is no fundamental conflict. In addition not all circumstances related to birth parent-adopted child contact are covered by the amending openness legislation, at least as far as enforceable orders are concerned. In fact the very situation covered by the facts of this case could not be the subject matter of a court order under the openness legislation.

The issue arose after the adoption of the two children involved and an openness order would not be available. [ 64 ] In determining what was parliamentary intent there is a presumption against interference with vested rights. Put another way when parliament intends to prejudiciously affect rights it must declare its intention expressly unless the intention is plainly manifested by unavoidable interference. Driedger, The Construction of Statutes, pp. 137-138. [ 65 ] In the circumstances of this case these are particularly telling arguments. The legislature must have been aware that

section 160 of the CFSA was of longstanding, whereby an order for adoption prevented a court from making an order under the CFSA for access to the child by a birth parent. The

section coupled with

section 143 of the Act terminating a birth parent access order since the child was placed for adoption (excluding a

part 3 child protection order) constituted a statutory bars to access within the confines of the CFSA. The legislature must have also been aware that there was established law pursuant to

section 21 of the CLRA permitting birth parent access in defined restricted circumstances. The presumption against interference with vested rights and the presumption that the legislature knows the existing state of the law when passing legislation does not bode well for the Society argument that the legislature must have intended to restrict birth parent contact with the child when passing the amending openness provisions.

At best from the Society’s point of view there is an overlapping of jurisdiction, but this is not sufficient requirement for irreconcilable inconsistency. [ 66 ] In fact the apparent inconsistency can be rationally explained. It is clear that the openness legislation, while involving the birth parent, places the birth parent in a secondary position. The Society has carriage of any openness action. The Society and the adopting parents can veto the involvement of a birth parent in any openness order or agreement.

Any openness order is predicated upon the continuation of an existing relationship at the time that the order is applied for and the order cannot be applied for once the child ceases to be a Crown ward. [ 67 ] Conversely the fact situation in this case where it is alleged that a post-adoption relationship is sought to be protected by an access order under

section 21 of the CLRA is not something that could be fostered or protected by an openness order at all, and in an openness agreement only with unanimous consent, unenforceable and subject to being withdrawn. [ 68 ] The true purpose of the legislation and the case law is to foster and protect the best interests of the child, but in different situations. Looked at in this way there is no blanket overlap of jurisdiction of necessity. Pre-adoptive circumstance requires the birth parent to seek a remedy under the Child and Family Services Act. Post-adoptive circumstance requires the remedy to be sought pursuant to

section 21 of the CLRA. The philosophy behind the openness provisions and the nature of the legislation with respect to openness makes it clear that there is a policy that the circumstances of the child in the adoptive home are to be given clear precedence over the history of the child in the birth parent home.

The obvious reason is the fact that the adoption itself is a statement that the child’s circumstances in the birth parent home were unacceptable with respect to the child’s best interests and the future circumstances in the adoptive home are to be protected so that they will be acceptable with respect to the child’s best interests. [ 69 ] However historically the courts have encountered facts situations where the position of the adoptive parent, on balance compared with the position of the birth parent, has not been in the child’s best interests in relation to birth parent contact.

These decisions and the relevant legislation in all provinces present a safety valve for continued contact in restricted circumstances to protect the child’s best interests. Using a purpose approach to the legislation and its import on the existing case law it becomes clear that the openness legislation is an expansion of birth parent child contact for the social policy reasons enunciated – more adoptions and better adoptions creating a more positive permanent environment for Crown wards. This is not fundamentally compromised by the limited access that birth parents have to adopted children in the parallel

section 21 process. The case law to date makes it clear that this is not a vehicle for birth parents to create a never ending process, to arbitrarily frustrate the wishes of adoptive parents and thereby adversely affect the best interests of the adopted children from an emotional harm point of view. Instead the

section 21 process addresses those infrequently encountered fact situations where an arbitrary or ill-thought out termination of a post-adoption relationship with a birth parent would be harmful to an adopted child. [ 70 ] Access considerations need not be inimical to the adoptive parent-child relationship. In fact the existing case law addresses this concern by using extremely limited criteria for granting an access order and limited access once granted. This as a clear recognition that access in these cases is not equated to access where the issue arises between birth parents.

[ 71 ] The result is that the Society and the adoptive parents are unable to use the construction and

interpretation of statutes argument to nullify the existing and court approved restricted right to child and birth parent contact by way of an application under

section 21 of the CLRA. [ 72 ] The Society’s position that the court does not have jurisdiction to make access orders post-adoption pursuant to

section 21 of the Children’s Law Reform Act is rejected. The application brought by the applicants dated the 8 th of September 2008 will proceed on its merits. [ 73 ] The remaining parties may bring a motion to the court for case management relief or placing the matter on the trial list to be heard on its merits. Dated at Brantford, Ontario This 23rd day of November, 2011 The Honourable Mr. Justice L. P. Thibideau * Acknowledgement is given to the helpful analysis and compilation of case law contained in The Construction of Statutes, E.A. Driedger, Butterworths, 1974, and its successor, Sullivan on the Construction of Statutes, Fifth Edition, by Ruth Sullivan, LexisNexis 2008.