



WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(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 childs parent or foster parent
    or a member of the childs 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.




COURT OF APPEAL FOR ONTARIO

CITATION: A.R. v. M.B., 2019 ONCA 462

DATE: 20190605

DOCKET: C66186

Sharpe, Trotter and Harvison Young JJ.A.

BETWEEN

A.R.

Applicant (Appellant)

and

M.B. and E.B.

Respondents

Michael J. Cupello, for the appellant

Danielle Szandtner and Paul Brunetta, for the
    respondents

Heard: May 28, 2019

On appeal from the judgment
    of Justice Terrence J. Platana of the Superior Court of Justice, dated October
    29, 2018, with reasons reported at 2018 ONSC 6441.

REASONS FOR DECISION

[1]

The appellant brought an application under s. 21(1) of the
Childrens
    Law Reform Act,
R.S.O. 1990, c. C.12 (
CLRA
) seeking access to her
    biological child, who had been adopted by the appellants mother (and her
    husband) in 2015. The application was dismissed on the basis that the appellant
    lacked standing. The appellant appeals from that decision.

[2]

The child in question, A.B., was born on September 21, 2010. In March
    2012, the appellant experienced mental health difficulties. She was
    hospitalized for a month, during which time the appellants mother and her
    husband (the respondents in these proceedings) took care of A.B. Although social
    services became involved, the respondents continued to care for A.B, even after
    she was made a Crown ward on July 3, 2013. During this time, the appellant had
    some access to A.B.

[3]

On February 19, 2015, the respondents adopted A.B. The appellant
    consented to the adoption. At the outset of the adoption proceedings, the
    appellant was served with a Notice of Termination of Access. She sought no
    openness agreement with the respondents.

[4]

Shortly after the adoption was completed, the appellant moved to
    another city, 350 kilometers away. The respondents permitted the appellant to
    visit A.B. once a month for two hours. The appellant was never permitted to be
    alone with A.B. According to the respondents, the appellant did not appear very
    interested in visiting with A.B. There was other contact between the appellant
    and A.B. by phone and by Facetime, but the frequency of that communication is
    unclear.

[5]

The appellant commenced an application for access under the
CLRA
in July of 2017. The appellant has been denied access to A.B. ever since.

[6]

At a case management conference, the appellants standing to bring an
    application under s. 21 of the
CLRA
was called into question. The
    Trial Management Judge directed a determination of the following issue: Does
    the Applicant have standing to apply for access to her natural child, who was
    adopted, in light of the provisions of s. 160 of the
Child and Family
    Services Act
, R.S.O. 1990, C. c.11 (
CFSA
)?

[7]

Section 160(1) of the
CFSA
, which has been replaced by s. 219
    of the
Child, Youth and Family Services Act
, 2017
, S.O. 2017,
    c. 14, Sched. 1, provides that, when an adoption is made under Part VIII of the
    Act, access by the birth parents is terminated.

[8]

The applicant applied for access under s. 21(1) of the
CLRA
,
    which provides:

s. 21(1) A parent of a child
or any other person
,
    including a grandparent, may apply to a court for an order respecting custody
    of or access to the child or determining any aspect of the incidents of custody
    of the child. [Emphasis added.]

The appellant contends that she falls within the
    meaning of any other person.

[9]

As a matter of procedure, the appellant contends that the application
    judge somehow pre-determined certain substantive issues (discussed below) by
    deciding them on a preliminary motion. We are not persuaded by this argument.
    There is no indication in the record that the appellant objected to this
    process. Nothing was brought to our attention to support the view that the application
    judge was not entitled to proceed on this basis. Standing is an issue
    well-suited to this type of preliminary determination.

[10]

The
    application proceeded on the shared understanding that access in these
    circumstances is exceptional and that an applicant must fall within a
    recognized exception (discussed below) and present a
prima facie

case
    that permitting the access application to proceed on the merits would be in the
    best interests of the child.

[11]

The
    appellant argued that she fit within two exceptions to the rule that prevents a
    biological parent from having access to an adopted child: (1) the biological
    parent establishes a relationship with the child after the adoption; and (2)
    assurances were given by the adoptive parents that there would be continued
    contact. She also argued that access would be in the best interests of A.B.

[12]

The
    application judge found that the appellant had failed to meet the evidentiary
    threshold of demonstrating that she fit within either of the exceptions, and
    that permitting the access application to proceed on the merits was not in the
    best interests of A.B. As a result, he found that the appellant lacked standing
    under the
CLRA
.

[13]

We
    are not persuaded that the application judge erred in his application of the
    law to the facts as presented on the application.

[14]

On
    the first exception, the application judge found, at para. 32, that I am of
    the view that the facts do not establish a relationship to meet the threshold
    test, nor do they establish an exceptional circumstance. The reality in this
    case is that the child was adopted prior to the age of three. She is now eight
    years of age and has had minimal contact with the birth mother. Even though
    A.B. was not adopted until she was 4 ½ years old, she had already been in the
    care of the respondents for some time. There was evidence to support the
    application judges finding that the relationship between A.B. and the
    appellant was, at best, minimal.

[15]

Moreover,
    the application judge found that there was no evidence that the respondents
    provided assurances to the appellant that she would have access to A.B on a
    go-forward basis. The appellants mother said that she let the appellant into
    her home at times based on
their
mother-daughter relationship. In
    cross-examination, the appellant acknowledged that, prior to consenting to the
    adoption, she reached no understanding with her mother as to what access, if
    any, she would have post-adoption. The evidence supported the application
    judges conclusion that there were no assurances of access or contact.

[16]

Most
    importantly, the application judge found that there was no evidence to
    establish that access would be in the best interests of A.B. to have the
    application proceed on the merits. He acknowledged that the appellant provided
    evidence to prove that she had taken steps to improve her own mental health and
    well-being. However, the evidence did not address the best interests of A.B. As
    the application judge held at para. 35: I find no such evidence in this case.
    The only evidence I have before me is that the court determined that it was in
    the best interests of the child to make an adoption order. In reaching this
    conclusion, he recognized that the integrity and health of the adoptive family
    must take precedence over the interest of a birth parent seeking to maintain
    contact with the child (para. 37).

[17]

The
    application judge made no error in terminating the application based on lack of
    standing, particularly in the absence of any evidence to suggest that
    permitting access would be in the best interests of A.B.

[18]

Accordingly,
    the appeal is dismissed with costs to the respondents in the amount of $7,500,
    inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

Gary Trotter J.A.

A. Harvison Young
    J.A.


