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August 13, 2005 permalink
A lawyer comments on a change to the Child and Family Services Act providing for openness orders. Even a lawyer is mystified. She mentions the claim that most access orders are not now exercised, without pointing out the foot-dragging by Children's Aid to prevent access, and the humiliating conditions of supervised access.
Proposed adoption law raises many questions
Family Practice By Carole Curtis
for Law Times
The provincial government established a Child Welfare Secretariat in April 2004, and hired Bruce Rivers (then executive director of the Toronto Children's Aid Society, the largest CAS in Canada) to head up a law reform initiative. The initiative had many goals, but was intended, in part, to evaluate the changes made to the Child and Family Services Act in 2000, following the report of the panel of experts chaired by Justice Mary Jane Hatton. The Child Welfare Secretariat prepared a report with 40 recommendations, which was submitted to the government, but has not been made public.
Bill 210, Child and Family Services Statute Law Amendment Act, 2005, was introduced on June 6. The bill amends the act to (among other things) permit courts to make openness orders for Crown wards who are the subject of a plan for adoption.
The number of children in the care of children's aid societies in Ontario has gone from 10,000 to about 19,000 in the last five years (these statistics may be slightly out of date, but are not exaggerated).
In Ontario, there are roughly 9,000 children (called Crown wards) in the permanent care of a children's aid society. Seventy five per cent of them can't be adopted because their family has a court order for access. The government says that majority of those access orders are not used by the parents (i.e., the parents do not see the children). One of the problems in this area is the lack of reliable data about the children in the government's care.
Crown wards with access live in foster and group homes. On average, children in foster or group care are moved every two years. That means a child moves her belongings, leaves her friends, changes schools, lives in a new house, and lives with a new family, facing different rules and new expectations. No one doubts this kind of instability permeates and affects all aspects of the child's life and well-being.
Children's aid societies' budgets went from $500 million to $1.1 billion in less than five years in Ontario. How-ever, currently, children's aid societies are carrying about a $70-million deficit.
Although I have acted and continue to act for all sides of the child protection equation (parents, children, and children's aid societies), my observations on this bill are from the perspective of parents' counsel. I refer to the parents as "the parents" and not as the "biological parents" or the "birth parents" as has become fashionable in this area of practice.
These amendments are a little complicated, and not intuitive. If you work in this area, you will need to read the bill closely.
In the bill, openness is not access. It may mean contact, communication, a card or letter, information, knowledge and for the child, may result in a greater sense of identity.
Before an adoption, only a children's aid society may apply to a court for an openness order (s. 145.1). The test applied is the best interests of the child. The order can only be made on consent of everyone, including the possible adoptive parents. The court can only change or terminate the order before an adoption, based on a material change in circumstances, applying the best interests test, and the children's aid society must agree.
After an adoption, the court can also change an openness order (s. 153). However, the child cannot apply for this change, and the parents cannot apply without leave. Openness can also be the subject of an agreement.
This law reform initiative raises mostly questions. Initially, there is a concern that the focus of law reform not be at the end of the process (at the Crown wardship/adoption stage) when it is too late to help this family stay together. Why isn't the energy and money being put into the front end of the process, in keeping families that need help together?
What is the philosophy behind this initiative? What is intended by this initiative? And for whose benefit? Is there any empirical data about this? Is this meant to benefit the parents? Is it meant to free up more kids for adoption? Who is the client here? (i.e., whom does the government identify as the client?).
Don't tell me the child is the client: that has never been the case. Parents and their lawyers will tell you that the government has always seen the adoptive parents as the real client.
What results are intended or expected? Is this meant to reduce the number of kids in care at the early stages? Is this meant to reduce the number of kids in long-term foster care (Crown ward with access, in foster care)? Will there be applications to court to terminate those several thousand access orders that are now not being exercised, and replace them with openness orders?
What is the structure really intended to be? What sort of contact is envisaged? Remember that the word used is "openness," not access or contact. What rights accrue to these children during minority and at age 18 -- are there any different rights than now? Is the contact envisaged by the parents different from the contact envisaged by the adoptive parents?
Why does the government cling to the use of the term "adoption?" What about permanent placement? Adoption itself is not a panacea, particularly in an evolving multi-cultural society. Like fostering, adoption is a concept quite foreign to some cultures.
What will the court order look like? What will the "usual" terms be? Will any retroactive orders be permitted? Who are the parties to these orders?
What about enforceability? Who will these orders bind? Who are the parties to these orders? What, if any, is the continuing role for children's aid societies after adoption? Who will enforce these orders?
And finally, from the parent's perspective, what do parents think this means? Do they think it means access? Will parents think this a better solution? What is really being offered to parents here? Will this make settlement of Crown wardship cases easier?
There are many bad names one can call a woman in our society, but there is nothing as horrible to a woman as calling her a bad mother. This is really what these cases are about. Losing your child forever is the worst thing that could possibly happen to a parent. A Crown wardship case is the capital punishment of family law.
While there may be research which supports the validity of reform in this area, it has not been made available. It is a great skill that lawyers are taught, to take something nearly everyone thinks is a good idea and pick it apart until almost nobody thinks it is. There is much in this bill to consider.
Carole Curtis is a family law lawyer in a three-lawyer firm in Toronto. She can be reached at email@example.com
Source: Law Times
pointed out by John Dunn