Catholic Children’s Aid Society of Toronto v. S.B., 2012 ONCJ 615

WARNING The court hearing this matter directs that the following notice should 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. COURT FILE No.: Toronto C49201/09 DATE: 2012·10·02 Citation: Catholic Children’s Aid Society of Toronto v. S.B. , 2012 ONCJ 615 ONTARIO COURT OF JUSTICE BETWEEN: Catholic Children’s Aid Society of Toronto, Applicant, — AND — S. B., R.O.C., C.J., Respondents. Before Justice E.B.

Murray Heard on October 1, 2012 Reasons for Judgment released on October 2, 2012 Fatima Husain ........................................................................................ for the applicant society Deirdre Newman ...................................................................................... for the respondent S.B. No appearance by or on behalf of R.O.C. or C.J., even though served with notice Caterina E. Tempesta .................................................. for the Office of the Children’s Lawyer,

legal representative for the child J.B. E.B. MURRAY J.: [1] On September 7, 2012, I released a decision in this matter providing that the children J.B., born […], 2004, and T.B., born[…], 2008, be made Crown wards. Their mother, S.B., asked that I make an order that she have access to them; I did not make thatorder. [2] The children currently live in the same foster home. The Society’s plan is to place them for adoption, hopefully in thesame adoptive home. It is possible, however, that they will be placed separately. [3] The order which I made on September 7, 2012, has not been signed and taken out. [4] Ms.

Tempesta of the Office of the Children’s Lawyer (OCL) represents J.B. in this proceeding. She brings a motion tothe court asking for directions. She submits that I did not deal with the OCL’s request that I make an order for sibling access betweenJ.B. and T.B. in my decision, and asks that I issue an addendum to the decision and grant J.B. access to T.B. a minimum of once everytwo weeks. [5] The children’s mother, Ms.

S.B., supports the OCL’s request. [6] Although the Society agrees that the issue of sibling access was before the court and was not dealt with in my decision,the Society submits that I am functus, and cannot now deal with the issue. [7] If I find that I do have jurisdiction, the Society asks that I not make an access order. Although the Society concedes thataccess between the boys is beneficial and meaningful to both children, it wishes to maintain maximum flexibility with respect toplacement for adoption of the children.

The evidence is that, although T.B. could likely be placed for adoption now, J.B. may not bepsychologically “ready,” and that placement for him may be delayed. Thus, the Society might place the boys in separate homes. If aseparate adoptive placement is necessary, the Society says it will use its best efforts to find adoptive parents who will facilitate siblingaccess, but it does not wish to be constrained by an order for access. An order for access would open the door to the OCL making anapplication for an openness order when the Society gave notice of its adoptive placement for J.B.. Jurisdiction [8] Ms.

Tempesta submits that I have jurisdiction to deal with the issue pursuant to Rule 25(19)(

c) as “a matter that wasbefore the court but that it did not decide.” Ms. Husain for the Society submits that this provision is intended to deal with only minorissues or consent additions or changes to an order. [9] I do not agree. The language of Rule 25(19)(

c) is plain, and not restrictive as to the type of issue that may beentertained. This was the view expressed by Justice Margaret Scott, who considered the scope of the rule in Beaumont v. Beaumont,(2006) (ON SC), O.J. 2433 (S.C.), with reference to the predecessor Rule 15(14)(

c) which had wording identical toR. 25(19)(c). Justice Scott made an addendum to a decision which had been released by her three years prior with respect to an issue thathad been before the court, but not decided by her. Justice J.R. Henderson reached a similar conclusion in Philip v. Philip,

(2008) O.J.3067 (S. Ct.), invoking Rule 2 in addition to Rule 15 (14)(c). In both these cases, orders had apparently been signed and entered prior tothe application to change or amend the order. [10] In addition, it is worth noting that the Ontario Court of Appeal has held that, independent of the provisions of any rule, “Itis well-settled in law that an order can always be withdrawn, altered or modified by a judge either on his own initiative or on theapplication of a party until such time as the order has been drawn up, passed and entered.”[1] [11] I find that I do have jurisdiction to consider the OCL’s request for an order for access by J.B. to T.B..

Sibling access [ 12 ] I turn to consideration of the issue of sibling access and the provisions of section 59(2.1), set out below.

(2.1) A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court is satisfied that, • (

a) the relationship between the person and the child is beneficial and meaningful to the child; and • (

b) the ordered access will not impair the child's future opportunities for adoption. [ 13 ] The OCL must satisfy both prongs of the test to obtain an order for access. [ 14 ] I will not repeat my review of this provision, the relevant caselaw, and the provisions with respect to openness orders contained in my decision of September 7, 2012. Beneficial and meaningful? [ 15 ] The parties agree that the relationship between J.B. and T.B. is “meaningful and beneficial” to J.B..

The evidence on this point is summarized below. • J.B. was clear and consistent in telling Silvia Novak of the OCL that he wished to continue to live with his brother. • Dr. Jasmine Eliav, J.B.’s therapist, testified that the child’s greatest fear was that he would be separated from T.B.. • Tara Noble of Thistletown gave evidence that she could not support J.B.’s separation from T.B. in the context of an adoption. • Both J.B.’s mother and his foster mother testified as to the strength of J.B.’s relationship to his brother. Ms.

L., the foster mother, testified that she would be very concerned for J.B. if he was separated from T.B.. • The children’s service worker, Kathleen Bick, testified as to the close and growing relationship between the boys, and as to J.B.’s sad and worried reaction to hearing that he might be separated from T.B.. Impairment of J.B.’s opportunities for adoption? [ 16 ] Has the OCL established that an order for access by J.B. to T.B. “will not impair the child’s future opportunities for adoption”?

I conclude that it has. [ 17 ] The evidence established that there may be challenges in finding an adoptive placement for J.B.. The child is almost nine years old, and may have difficulties in forming an attachment to a new family. If adoption means a termination of contact with T.B., that can only serve to disturb J.B., and make the prospects of him integrating into a new family even more difficult.

No evidence was presented about the characteristics of prospective adoptive parents, but Sheilagh Beatty, the Society’s adoption worker, did testify that the Society educates them about the risk factors that can affect a child’s transition into an adoptive family. I would expect that prospective adoptive parents would welcome the possibility of J.B.’s continued contact with T.B. as a positive factor, a factor that would increase the likelihood that their adoption of J.B. would be successful. [ 18 ] The Society was voluble in opposing an order for access between Ms.

S.B. and J.B., pointing to the evidence of her difficult and uncooperative behaviour with Society workers and foster parents in the past as evidence that an access order would impair J.B.’s opportunities for adoption. The same concern prompted the Society to oppose an order for access between J.B. and T.B. if T.B. was placed with his mother. The Society voiced the concern that Ms. S.B. would use the boys’ access relationship to undermine J.B.’s adoptive placement. [ 19 ] Ms. S.B. will not be involved in any access between J.B. and T.B. that I may now grant.

The Society did not advance any specific reason with reference to the facts of this case to think that such an order would undermine or unreasonably delay J.B.’s adoption. Ms. Beatty did not testify that a sibling access order would impair J.B.’s opportunities for adoption.

[ 20 ] The Society’s opposition to an order for sibling access seems to be based on the principle that there should be no legal constraints on it when seeking an adoptive placement for a Crown ward. I cannot accept that position. It amounts to an absolute prohibition on an order for access if the Society’s plan for a child is adoption.

If the Legislature had intended that result, then s. 59(2.1) would have been drafted differently. [ 21 ] Having found that the OCL has satisfied both branches of the test in s. 59(2.1) and that an order for sibling access is in J.B.’s best interests, I order that J.B. have access to T.B. a minimum of once every two weeks. If the Society gives notice that it intends to place T.B. for adoption, the OCL shall be served with that notice in order to allow the office to bring an application for an openness order on J.B.’s behalf, if so advised. Released: October 2, 2012 Signed: “Justice E.B. Murray”