“Pursuant to s. 194(4) of the CFSA, an openness order may be made by a court if the court is satisfied that:
(a) the openness order is in the best interests of the child;
(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and
(c) the following entities and persons have consented to the order:
(i) the Society,
(ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made,
(iii) the person with whom the Society has placed or plans to place the child for adoption, and
(iv) the child if they are 12 or older.
The CFSA recognizes that an openness agreement may be reached by adoptive parents, before or after an adoption, regarding children and sets out the parameters for any such agreement to include the following:
a) an openness agreement may be made by an adoptive parent of a child and, in this case, a birth relative. s. 212 (1)
b) an openness agreement may be made at any time before or after an adoption order is made. s. 212 (2)
c) an openness agreement may include a process to resolve disputes arising under the agreement or with respect to matters associated with it. s. 212 (3)
d) where the views and wishes of the child can be reasonably ascertained, they shall be considered before an openness agreement is made. s. 212 (4)
In Native Child and Family Services of Toronto v. W. H. (K.)., 2007 ONCJ 169, the court made an order for Crown Wardship of a child and determined that there would be no order for access. The court noted in paragraph 57, footnote 7 the following:
[7] An openness order may be varied or terminated before an adoption upon application by the Society or the respective adoptive parents, and after an adoption, upon application by the Society, the adoptive parents, order, with leave of the court, by the person permitted to communicate with the child. See 145.2(1) and 153.1(1). The Act contains no provision for a court to enforce, vary or terminate the provisions of an openness agreement, although the agreement can provide provisions for alternative dispute resolution.
In J.A. v J.B., 2011 ONCJ 726, the birth parents had brought a motion for access, which was denied in child protection proceedings where their children were made Crown Wards without access after the children had been adopted. The court stated at paragraph 44:
[44] “Openness agreements are apparently more user-friendly for the birth parent. They may be entered into before or after adoption. However, the agreement is not ostensibly enforceable as a court order is enforceable”.
In Children’s Aid Society of Toronto v. D. D., 2018 ONSC 4743, the court stated at paragraph 27:
[27] There is a provision in the CFSA governing openness agreements (s. 153.6(1)), which are not court orders, but rather agreements which are voluntarily entered into by the parties: K.F. v. Children’s Aid Society of Ottawa 2018 ONSC 364 at paragraph 12. However, the birth mother has no right to apply to any court for an openness agreement after adoption, and the issue is not before the application judge.
The purpose of an openness agreement is to facilitate communication and to maintain existing relationships. An openness agreement is not a court order and is not enforceable as a court order. It is a voluntary agreement entered into by the adoptive parents with specifically designated individuals to ensure the connection between the children and, in this case, the maternal grandmother. The applicant had 30 days from August 23, 2017, to file an application for openness. She failed to do so. Her request to extend the timeline was denied by Justice Audet. The applicant did not appeal that decision. Now, more than four years after her initial request was denied, the applicant again seeks to extend the timelines.”
L.F. v. Children’s Aid Society of Ottawa, 2022 ONSC 3682 (CanLII) at 18-23