More Family Litigation

May 19, 2011 permalink

The Family Lawyers Association points out that bill 179 will increase child protection litigation. Right now, children's aid societies can induce parents to consent to crown wardship by offering continuing access to the children. With bill 179, that access becomes meaningless, because it can be cut off on adoption. Consequently no family will consent to crown wardship and every crown ward case will go to full trial.

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Submissions of the Family Lawyers Association Submissions on Bill 179 May, 2011

The Family Lawyers Association (the F.L.A.) was formed in 1994 as a result of Legal Aid and L.P.I.C. crisis of the mid-1990′s. Many of our members represent parents and children in Child Protection proceedings.

The F.L.A. agrees with the amendment proposed to Section 71.1 of the Child and Family Services Act (C.F.S.A.) but the government needs to ensure that all Ontario Children’s Aid Societies receive additional funding to ensure that such services can be provided to the children of this Province.

Adoption of Crown Wards with Access to Family and other Community Members

The F.L.A. supports the notion that children subject to Crown Wardship no access by the Court of first instance should be placed with “forever families” as soon as possible.

The proposed amendments to the C.F.S.A. in Bill 179 concern adoption of children where a Court of first instance has determined it is in these children’s best interest to have contact with parents, extended family and other community members after an Order of Crown Wardship has been made. The Courts of first instance (either after a trial of a matter or on consent of all parties to the litigation) has determined that such continued contact is in the child’s best interest.

Pursuant to Section 59 (2.1) the Courts of first instance will only make a Crown Wardship Order with access if the Court is satisfied that:

1. the relationship between the person and the child is beneficial and meaningful to the child; and
2. the ordered access will not impair the child’s future opportunities for adoption.

In the event that a parent or any other person in whose favour an access Order has been made is not exercising access or if such access is no longer beneficial or meaningful to the child, the Children’s Aid Society who has legal care of the said child should be mandated to bring a Status Review pursuant to Section 64 of the C.F.S.A. asking the Court to terminate the access Order so that the child is free for adoption without any impediment of an access Order.

It is the position of the F.L.A. that the current wording of Bill 179 will result in more litigation in child protection proceedings both at the first instance and after a Crown Wardship Order with access and when a Society moves to adopt children subject to Crown Wardship with access Orders. Such litigation will result with children sitting in the system as the litigation is pursued through the Courts. At first instance, parents will not be inclined to agree to Crown Wardship Orders as they will have nothing to lose and more cases will proceed to trial as there will be no incentive to agree to such Orders with access.

It is the F.L.A.’s position that the Bill should be amended to provide that in the event the Society has found or decides to place a child for adoption who is subject to a Crown Wardship with access Order there should be a presumption that an Openness Order will be made unless the Court hearing such an application determines such an Order would not be in a child’s best interest pursuant to the Act. All children subject to such proceedings shall be represented by counsel through the Office of the Children’s Lawyer. The child, in these cases, shall not be adopted by a “forever family” unless that family is prepared to abide by the terms of the Openness Order deemed by the Court to be in the child’s best interest.

The F.L.A. understands that the goal of this legislation is to ensure that more children should be moved out of the system and placed with adoptive families and where appropriate maintain contact with those who have a right to access to these children. The manner in which the current bill is written may result in children not being released from the child protection system in a timely manner as the request for Openness Orders by parents may be resisted by Children’s Aid Societies.

The lack of jurisprudence on Openness Orders pursuant to the current legislation illustrates the reluctance of Children Aid Societies in Ontario to enter into such arrangements. The only comprehensive judgment on this issue is the judgment of Justice Heather Kataraynch of the Ontario Court of Justice in Re: Proposed Openness Orders for S.M., 2009, ONCJ 317 (CANLII) released July 14, 2009. If there is a presumption in the legislation that Openness Orders will be made in applications to adopt children who are Crown Wards with access there may be less litigation at first instance and less litigation as these adoption proceedings proceed through the Court. It is the F.L.A.’s position that the Societies should be mandated to seek such an Order unless they can demonstrate to the Court that continued contact at the time of the Openness Application is no longer meaningful and beneficial to the child and no longer in the child’s best interests.

Currently children 7 years and older have to consent to their adoption. As stated, it is the position of the F.L.A. that all children who are Crown Wards with access and who are to be placed for adoption have counsel appointed for them and are represented by the Office of the Children’s Lawyer in these proceedings. Counsel appointed by the Court through the Office of the Children’s Lawyer will ensure that the children’s rights are protected in these proceedings and will ensure that the child’s Charter rights are protected and their views and preferences are before the Court.

The proposed service requirements in Section 145.1.1 (4) (2) needs to be amended by eliminating “the person’s lawyer of record” as after the Crown Wardship with access proceeding is completed there is no longer a lawyer of record for the parents / other person who has access to the child.

As stated, it is our position that the Society seeking to adopt children who are subject to Crown Wardship with access Orders shall also seek an Openness Order. The current bill places the onus on the parent or the party and in some cases the child to seek such an Order. In the case of children, the Office of the Children’s Lawyer should receive notification of the same so that the children’s rights are protected. The 30 day application time line could be insufficient given the challenges that parents / parties can face. Given the challenges and time lines to obtain legal aid we are concerned with individuals being able to meet the requirements within 30 days mandated by Bill 179. We are particularly concerned with parents / parties that reside in remote and or northern geographic regions of this Province being able to meet these time lines. The government will need to ensure that Ontario Children Aid Societies, Legal Aid Ontario, the Office of the Children’s Lawyer and our Court system receives additional funding to deal with the proposed change in the law.

Finally, the F.L.A. is very concerned that there has not been meaningful consultation with parents’ counsel before this legislation was tabled. If such consultation had occurred the concerns that have been noted in these submissions could have been addressed.

Source: Family Lawyers Association