S.S.K. v. Halton Children’s Aid Society, 2014 ONCJ 169

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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 DATE: March 28, 2014 COURT FILE No.: C245/08 Citation: S.S.K. v. Halton Children’s Aid Society, 2014 ONCJ 169 BETWEEN: S.S.K. Applicant, — AND — CHILDREN’S AID SOCIETY REGION OF HALTON E.S.M. (mother) M.I.K. (father) Respondents

Before Justice Roselyn Zisman Heard on March 6, 2014 and by written submissions Reasons for Judgment released on March 28, 2014 Kristin E. Knoepfli......................................... counsel for the Office of the Children’s Lawyer, legal representative for the child S.S.K.

Diane Skrow……………………..counsel for the Halton Children’s Aid Society, respondent E.S.M……………………………………………………………………respondent on her own behalf M.I.K………………………………………………….. not appearing even though served with notice Zisman J.: Introduction [ 1 ] This is an openness application dated April 24, 2013 brought by counsel on behalf of the child, S.S.K. who is currently 14 years old, seeking ongoing contact between the child and both of her parents. [ 2 ] The society served the parents and the child with its notice of intention to place the child for adoption and notice of termination of access.

The mother was personally served on March 7, 2013 and the father was personally served on March 19, 2013. The child was personally served on April 3, 2013 and the Office of the Children's Lawyer was also served on the child’s behalf. [ 3 ] All parties had 30 days to file an openness application. Neither parent filed any response. However, counsel on behalf of the child initiated the openness application that is currently before the court. [ 4 ] The openness application was initially before the court on June 13, 2013.

The respondent society served an answer and negotiated terms of contact with counsel on behalf of the child. [ 5 ] M.I.K. (“the father”) was served personally on May 1, 2013. The father is presently in custody and although he did not attend court or file a formal openness application, he sent a letter advising the society that he supported the application and the child’s proposed adoption. He was noted in default. [ 6 ] E.S.M. (“the mother”) was served personally on April 25, 2013. She did not serve an answer but has appeared in court and has initiated other proceedings that caused inordinate delays.

Background [ 7 ] It is important to briefly outline the history in this matter. [ 8 ] The child has been in the continuous care of the society since February 14, 2008, initially pursuant to a temporary care agreement and then pursuant to various temporary and final society wardship orders. There was a finding that the child was in need of protection pursuant to section 37(2) (

g) of the Child and Family Services Act on the basis that there was a risk of emotional harm due to both parents’ mental health issues and concerns about both parents’ ability to parent. [ 9 ] In January 2010 the society commenced a status review application seeking an order of Crown wardship with access. [ 10 ] After a four day status review trial, on August 20, 2010 I released my decision finding that the child continued to be in need of protection and made her a crown ward with access to both of her parents.

Such access to be at the discretion of the society including the level of supervision, length, frequency and location of access visits. [ 11 ] At the time of the final order was made, the mother had not seen the child for about seven months as she did not agree with supervised access, the child had not connected with her cultural and religious community or had contact with her extended family members as the mother did not want anyone to know the child was in society care. [ 12 ] After the final order was made, in accordance with the child’s wishes, she was connected with her former synagogue and the Rabbi arranged for a mentor family to assist the child with her religious education and observances.

Over time the child became more involved with the mentor family and the mentor family approached the society expressing their desire to adopt the child. The child began to spend extended time with this family. [ 13 ] The society also facilitated contact between the child and her extended family.

[ 14 ] The child did not have much contact with her father as he was incarcerated on serious criminal charges but they did correspond by mail and she visited him once at the correctional institution. The society vetted the letters the father sent and found them to be appropriate as was their visit together. [ 15 ] The mother continued to refuse to visit the child from August 2010 to mid-February 2012 as the visits continued to be supervised. Although the mother was provided with a

schedule of specified telephone access she did not abide by the

schedule and called the foster home any time she wanted. In February 2012 and again in June the mother accompanied the maternal grandfather who was visiting from Israel on several supervised access visits and the mother attended another supervised access visit with the maternal aunt and her family. [ 16 ] In August 2012, the mother requested her first independent access visit since the Crown ward order had been made two years earlier. The visit was eventually arranged for October 2012. The mother requested weekly visits thereafter.

The child asked to think about it and eventually agreed to only two more visits in November 2012 and February 2013. At the child’s request telephone access was reduced to once a week. Based on the materials before me, as of April 2013, no further visits have been requested by the mother or child. But I assume further visits occurred as the child is requesting ongoing visits. [ 17 ] The child expressed a desire to be adopted by her mentor family.

She indicated that she felt culturally connected to them and their family, that she enjoyed spending the religious holidays and other activities with them, that she was excited about her upcoming Bar Mitzvah and that she never felt connected to her foster family who were Roman Catholic. [ 18 ] As a result the society determined that it would support the adoption by the mentor family. The society adoption worker met with the mother to explain and review the adoption plan prior to the mother being formally served with the notice of the society’s intent to place the child for adoption.

The mother advised that she was not in agreement and intended to commence a status review application. [ 19 ] As the child wished to continue contact with her parents and the prospective adopting family was willing to accommodate such contact, counsel for the child acted promptly to initiate this openness application. The society also indicated that it was agreeable to supporting the child’s wishes with respect to ongoing contact with both of her parents.

Court Proceedings related to openness application [ 20 ] Prior to the first court date on the openness application, the mother brought a motion on April 25, 2013 for leave to bring a status review application, pursuant to

section 65.1of the Child and Family Services Act . The mother submitted that the child wanted to see her, that she had taken courses and wanted the child returned to her care. For short oral reasons, I dismissed the motion. [ 21 ] On the return date of the openness application, I was advised that the mother filed an appeal of my order of April 25 th . The mother advised the court that a stay was granted pending appeal.

Counsel for the society advised the court that she was in the Superior Court of Justice May 31, 2013 for a status hearing regarding the appeal and had no knowledge of any stay and the society had not been served with a motion to stay. It was subsequently discovered that a member of the court administration had improperly issued an administrative certificate staying my order dismissing the mother’s motion for leave to bring a status review application.

In the circumstances all counsel agreed that the openness application be adjourned pending the outcome of the appeal. [ 22 ] During this court attendance, society counsel advised the court that pursuant to

section 141.(1) of the Child and Family Services Act as there was no outstanding appeal from the Crown wardship order that it was the position of the society that the child could be placed in an adoptive home.

This was also in accordance with the child’s wish to be placed in the proposed adoptive home prior to her Bar Mitzvah in June 2013. [ 23 ] On August 15 th , the matter was again before the court and upon being advised that the mother’s appeal was being heard on October 16 th , the matter was again adjourned. [ 24 ] The mother filed a motion in the Ontario Court of Appeal for a stay of proceedings in this court which the court assumed was the openness application.

On October 28, 2013, Justice Feldman endorsed that the mother’s motion was dismissed. [ 25 ] On October 31, 2013 the matter was again before me and I was advised that the mother’s appeal of my order to the Superior Court of Justice was dismissed. The mother advised that she intended to appeal further. Again, out an abundance of caution counsel for the child agreed to a further adjournment of her application. [ 26 ] I noted that the parents had been served with the openness application on behalf of the child and therefore had 30 days to file an answer.

I further held, that based on the legislation, I did not have the authority to extend the time for filing. I therefore noted the parents in default. However, despite being noted in default I indicated that I would permit the mother to make submissions on the openness application on the return date. [ 27 ] The mother did appeal the order of Justice Sproat dated October 16, 2013 of the Superior Court of Justice that dismissed the appeal from my decision refusing to grant the mother leave to bring a status review application.

The mother’s appeal was heard by the Ontario Court of Appeal on December 13, 2013 and for oral reasons the court dismissed the mother’s appeal. The court upheld the appeal decision that despite positive changes in the mother’s life, the child’s best interests required that the adoptive process move forward. The court approved the following comments by Justice Sproat: We are dealing with a child who is approaching her 14th birthday.

There is no possible basis upon which the clock can be turned back and any thought could be given to, essentially, placing a child of this age with a mother with whom she has had very limited contact for so many years. That clearly could not be at all tenable or at all in the best interest of the child. We now have a situation, and this was the situation in front of Zisman J., where the child wants to see the adoption proceed, but she does want to maintain some ability, if she sees fit, to have communication with her mother. Her best interests are clearly served by the process

continuing toward the adoptive home that's been mentioned. [ 28 ] The application was again before me on March 6, 2014. The mother advised the court that she had filed a motion for leave to appeal the Crown wardship order made on August 20, 2010.

That motion was dismissed by Justice Grey of the Superior Court of Justice and she was seeking to further adjourn this application as she was seeking leave to appeal that order to the Court of Appeal. [ 29 ] Counsel for the child advised the court that she was not agreeable to any further adjournments and that she and counsel for the society had, after extensive negotiations, reached an agreement on the terms for ongoing access between the child and her parents. Counsel for the society was also not agreeable to any further adjournments.

Both counsel submitted that the child was under considerable stress because this application had not been completed. [ 30 ] I advised the mother that I would hold the matter down for an hour and then hear her submission. Upon reflection, I gave the mother the opportunity to file written submissions which she has now done. I indicated that counsel for the child and society could file any responding submissions in writing within one week of receiving the mother’s submissions. [ 31 ] On March 26 th , Ms.

Skrow, counsel for the society was before me on another case and asked to address the court with respect to this case. Ms. Knoepfli, counsel for the child, was in the body of the court. They advised that they were not filing any responding submissions. But they requested to file a Form 34M1: Consent to Openness Order. This is the form mandated by the legislation and the terms are exactly the same as in the consent filed by counsel at the court attendance when the mother was present on March 6, 2014. A copy was sent to the mother.

I permitted the form to be filed as there was no prejudice to the mother and in fact, it protected the parents’ rights to contact as the terms for openness were on a proper court form. Analysis [ 32 ] The agreement between counsel for the child and the society provides for both supervised direct contact and indirect contact between the child and her parents. The specific arrangements are to be determined by the child and her adoptive parents. [ 33 ] The mother submits that the child should be removed from her current adoptive placement and makes allegations against the family.

The mother also submits that she is appealing the Crown wardship order and that the society has illegally placed the child in the prospective adoptive home. She is requesting that the child be returned to her home. She is also requesting unsupervised access over week-ends and on holidays. [ 34 ] The mother did not address any of the terms of access consented to by the society and the child.

The mother is simply pursuing her relentless attempt to have S. returned to her care or for increased access that is not consistent with the child’s wishes. [ 35 ] The mother has not taken any responsibility for her lack of consistent access since S. has been in care or the difficulties she has over the years caused her daughter by her actions. [ 36 ] S. has been very fortunate to have developed a relationship with a family that wishes to adopt her and to whom she feels connected.

Her wishes should be respected and fostered. [ 37 ] In this openness application she and her counsel have taken the initiative to preserve her ongoing relationship with her birth parents. Unfortunately the mother cannot accept S.’s relationship with the proposed adoptive family and as result she has caused unnecessary stress to her daughter. Despite some of the problems and strains in the relationship between S. and her mother, S. wishes to maintain contact with her and the mother is an important part of the child’s life.

Maintaining a relationship with her biological parents is important for S.’s sense of self and her identity. An openness order will permit S. to move forward with her life, without sacrificing her relationships with her birth family which are and continue to be significant and important to her. [ 38 ] The consent order filed by the society and the child’s counsel states that the proposed adoptive family were consulted and reviewed the terms of this openness order.

Since June 2013 when S. was placed in their care they have assisted in facilitating access visits between S. and her parents when the visits were arranged. [ 39 ] The proposed adoptive family have acknowledged that S.’s relationship with her birth family is important and that they will continue to support it as provided in the openness order. [ 40 ] In my view the proposed terms of contact in the openness order are in this child’s best interests and permit her to be adopted and also maintain contact with her biological parents. [ 41 ] There will be an order as follows: 1) The child, S. born […], 1999, shall have supervised direct (face-to-face) contact with her birth parents, E.S.M. and M.I.K, at reasonable times upon reasonable notice.

The dates and times of this contact shall be determined by S. and her adoptive parents taking into consideration S.’s wishes, activities and interest. 2) The contact set out in paragraph 1 above shall be supervised by a person agreed upon by the adoptive parents and S., until such time as S. and her adoptive parents determine that supervision is no longer necessary. 3) The child, S. born […], 1999, may have indirect contact (such as telephone and email) with her birth parents, E.S.M and M.I.K,

at such dates and times as agreed to by S. and her adoptive parents. 4) The birth parents, E.S.M. and M.I.K., may write and send up to one (1) letter per month to S., if they wish.

S. may respond by return letter if she wishes, but is not required to do so. 5) The birth parents, E.S.M. and M.I.K., may send S. a card and/or gift on her birthday and/or on other significant Jewish holidays of the year. 6) The birth parents, E.S.M. and M.I.K., shall notify S. and her adoptive parents of any change in address and/or telephone number. 7) The adoptive parents and S.’s birth parents, E.S.M. and M.I.K, agree to seek assistance from an adoption practitioner, the Halton Children’s Aid Society or any other counsellor/mediator experienced in open adoption arrangement should difficulties arise in the future with respect to this Order.

The Halton Children's Aid Society will remain available to facilitate any discussions between the parties as required. 8) The birth parents, adoptive parents and S. shall utilize email as a means of corresponding with each other to provide notice and/or make arrangements under this Order. 9) The birth parents, E.S.M. and M.I.K, shall not have any unsolicited contact with S. and /or her adoptive parents, either directly (face-to-face) or indirectly (telephone, email, social media websites, etc.), save and except as permitted under this Order. 10) All direct and indirect contact between S. and her birth parents E.S.M. and M.I.K., shall be initiated by S., save and except for the indirect contact permitted under paragraphs 4, 5, and 6 of this Order.

Released: March 28, 2014 Signed: “Justice Roselyn Zisman”