WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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 child's parent or foster parent or a member of the child's family.

87(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 Information

Date: May 17, 2019

Court File No.: C90672/16

Ontario Court of Justice

Parties

Between:

CHILDREN'S AID SOCIETY OF TORONTO

Karen Freed, for the APPLICANT

APPLICANT

- and -

J.G. and T.H.

Dorothea Dadson, for the RESPONDENT, J.G. The RESPONDENT, T.H., not participating in the case and found in default

RESPONDENTS

Hearing and Decision

Heard: March 28, April 15-16 and May 15, 2019

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) brought a motion for summary judgment within its Amended Protection Application. It sought to find the subject child A.G. (the child), born in […] 2018, to be a child in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017 (the Act or CYFSA). It also sought a disposition placing the child in extended society care with no access to the respondents (the parents). Lastly, the society sought a sibling access order.

[2] The respondent T.H. (the father) is the child's father. He did not file an Answer/Plan of Care and did not participate in this case. He was found in default by Justice Carolyn Jones on January 29, 2019.

[3] The respondent J.G. (the mother) initially asked that the society's summary judgment motion be dismissed.

[4] The society filed affidavits from eight of its workers in support of its motion.

[5] The mother filed her own affidavit in response.

[6] The summary judgment motion started on March 28, 2019. The court found that it could not justly determine the issues of disposition and access based on the affidavit evidence filed.

[7] The court ordered that a mini-trial be conducted pursuant to subrule 16(6.2) of the Family Law Rules (the rules). The court indicated that it wanted supplementary evidence from a society worker about its assessment of persons the mother had identified as supporting her plan of care.

[8] The court also indicated that it wanted to hear oral evidence from the mother about her insight and understanding about the protection concerns and the child's special needs and more detail about her plan of care – specifically her plan to meet the child's special needs.

[9] After discussion with counsel, a format was set up for the mini-hearing. The mother would be permitted to cross-examine the main society worker and one worker of her choice who had supervised her access with the child. She would be permitted to give additional direct evidence and call her sister to give evidence. The society would have the opportunity to cross-examine the mother and her sister.

[10] On the return date of April 15, 2019, the mother advised the court that she would not plan for the child and would consent to an extended society care order. The parties spent much of that day negotiating a statement of agreed facts.

[11] On consent, on April 15, 2019, the required statutory findings were made about the child pursuant to subsection 90(2) of the Act. The child was found to be a child in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) of the Act. A dispositional order was made placing the child in extended society care and an order was made for sibling access with the child being the access holder and his siblings being the access recipients.

[12] This left the issue of the mother's access with the child to be determined. The case was adjourned to the following day.

[13] On April 16, 2019, the case continued.

[14] The society maintained its position that the mother should have no access to the child.

[15] The mother sought an order that her temporary access with the child be made final. Presently, she has supervised access with the child once each week at the society office for 90 minutes.

[16] An unusual aspect of this case was that on April 16, 2019, both the society and the mother asked the court to make a final decision based on the written material filed and the oral evidence of the two society workers who the mother chose to cross-examine that day. The court asked the mother if she wanted to give any further oral evidence and she declined. The society was asked if it wanted to cross-examine the mother and it declined.

[17] The society and the mother agreed that this process permitted the court to adjudicate the access issue in a fair and just manner, make the necessary findings of fact and apply the law to the facts. They both agreed that there were no genuine issues that required a further trial process. In essence, they had agreed to a focused trial of the access issue pursuant to subrule 16(9) of the rules.

[18] The issues for this court to determine are:

a) Is an order for access between the mother and the child in the child's best interests?

b) If so, what access order is in the child's best interests?

c) If an access order is made, who should be the access holders and who should be the access recipients?

Part Two – Background Facts

[19] The material facts of this case were really not in dispute.

[20] The mother is 39 years old. She immigrated to Canada from Ethiopia with her brother in 2003.

[21] The mother has a very long history with the society. She has been involved with the society since 2013.

[22] The mother has four other children. Those children were removed from her care on April 16, 2016 after she was charged with assault on three of them. The society was also concerned about the exposure of these children to domestic violence and adult conflict and the mother's alcohol misuse.

[23] On January 23, 2017, Justice Roselyn Zisman found all four children to be children in need of protection pursuant to clause 37(2)(b) of the Child and Family Services Act (the CFSA).

[24] On February 22, 2017, the mother pled guilty to one count of assault and received a 24-month probation order.

[25] Two of the mother's children were eventually placed in the legal custody of their biological father in Calgary. The mother deposed that she has frequent telephone access with these children and that when they came to Ontario last summer, she spent extensive time with them.

[26] Another child was placed with her biological father by Justice Zisman on November 11, 2017, pursuant to a supervision order. The mother deposed that she visits with this child almost every Saturday for one hour at the mall. The father keeps her advised of any issue affecting that child.

[27] T.H. is the father of the mother's fourth child (S.). A trial regarding S. was heard before Justice Debra Paulseth in the fall of 2017.

[28] On January 3, 2018, Justice Paulseth made S. a crown ward with no access to her parents.

[29] Justice Paulseth set out the mother's challenging personal history in her decision, including the following:

a) She has a grade 4 education and cannot read or write in her first language.

b) The mother said that the father of her two oldest children was emotionally and physically violent to her.

c) The mother said that the father of her third oldest child forced his way into her apartment and sexually assaulted her.

d) The mother said that the father also physically abused her.

[30] Justice Paulseth made several findings of fact about the mother's parenting that are relevant to this case, including:

a) The mother had physically abused the older children.

b) The mother was unable to adequately parent S. or meet her needs. S.'s overall development would inevitably be severely compromised by the mother's care in that she would not recognize the stimulation and routine and security that a child needs.

c) The mother struggled with parenting, even in a supervised setting. She needed support and intervention on access visits, including on how to redirect S.

d) The mother had little insight into the basic needs of children, such as routine, love and affection, stimulation and how to be safe and nurturing.

e) The mother was unable to integrate parenting instruction into her parenting. She was inconsistent in following parenting suggestions and couldn't remember them.

f) The mother had difficulty talking to and engaging S. There were long periods of silence during access visits.

g) Even with extensive supports, the mother made minimal parenting gains.

h) The mother had little insight into the protection concerns and minimized them. She lacked insight into the harm caused to her children due to their exposure to domestic violence and her neglect of them.

i) The mother's children showed fear of her. She was unable to understand the impact of her anger on them.

j) The mother was still drinking.

k) The mother was unable to separate from the father. The mother needed the father or another dominant male figure to support her in meeting her own great needs and loneliness.

l) The mother's needs were all-consuming, leading to blindness of her children's needs.

m) The mother was consistent for access visits.

n) The mother had great love for her children.

[31] Justice Paulseth made the following findings about the father:

a) He hardly knows S.

b) He has a history of violence, including physically assaulting his female partners.

c) He has a lengthy criminal history.

d) He has outstanding criminal charges.

e) He has a pattern of not following court orders.

f) He has not followed through with any services to make needed changes.

[32] In October 2017, the society learned that the mother was pregnant with twins, had been drinking during her pregnancy and was still in a relationship with the father.

[33] The child and his twin (A.) were born in […], 2018 at 26 weeks gestation and each weighed approximately 1.5 pounds at birth. They had significant medical needs as a result of their premature birth. They were treated for jaundice and pain management, were fully ventilated and required multiple blood transfusions.

[34] The society issued a protection application for both the child and A. on February 14, 2018. On that day, both children were placed in the temporary care of the society with access to the mother in the society's discretion.

[35] A. died on April 19, 2018 due to his medical challenges.

[36] While at the hospital, the child was treated for a bilateral intracranial hemorrhage. He had multiple surgeries to repair a perforated bowel and received retina treatment after being diagnosed with Retinopathy of Prematurity.

[37] The child remained in the hospital until he was discharged on May 25, 2018.

[38] Despite encouragement, the mother only visited the child and A. a few times at the hospital. As of May 3, 2018, the mother had only visited the child twice. The mother said that she wasn't visiting because she was ill and since it was very difficult for her to see her children in pain.

[39] The mother began having supervised access with the child at the society's office in June 2018. At the beginning, she was inconsistent with her access, missing three out of four scheduled visits. She has been consistent in exercising weekly supervised access since the end of July 2018.

[40] The child continues to receive ongoing medical assessment at the Hospital for Sick Children from the General Surgery Department, the Ophthalmology Department and the Neonatal Follow Up Clinic, where he will be followed for the first three years of his life. The child is on the waiting list to receive services from the Child Development Institute.

[41] The mother has not attended any of the child's many medical appointments at the Hospital for Sick Children although she has been invited to attend. The mother deposed that she trusts the doctors to make the necessary medical decisions for the child.

[42] On July 12, 2018, the society amended its Protection Application to seek the disposition of extended society care with no access for the parents.

[43] The child continues to reside in a foster home, together with S. He was described as a happy child. All of his needs are being met in this home.

[44] The society advised the court that the foster mother is interested in adopting both S. and the child.

[45] The mother deposed that she has not consumed alcohol since October 2017. Claudine Douglas, a society worker who was cross-examined by the mother testified that she had no evidence that the mother was drinking.

[46] The mother also deposed that she has had no contact with the father since November 2017. Ms. Douglas testified that she had no evidence to contradict this.

[47] The mother deposed that she is on the waiting list for an Adult Protective Service Worker and the Parenting Enhancement Program through Surrey Place in Toronto.

Part Three – The Mother's Access

[48] The mother's access with the child has been fully supervised at the society offices once each week since June 2018. The visits were initially for one hour and were increased to 1.5 hours on October 3, 2018. An Oromo interpreter usually attends the visits to interpret for the mother.

[49] The observations of the society workers about the quality of the mother's access were consistent. These observations closely mirrored the prior observations by society workers about the mother's access with S.

[50] The society workers set out the following concerns about the mother's access:

a) The mother often struggles to engage the child in play. There will be several periods of silence.

b) While the mother will usually agree to parenting suggestions from the workers and follow them in the moment, she has difficulty following these suggestions at subsequent visits.

c) She had challenges mixing the child's formula.

d) She has difficulty following information about the child's feeding schedule.

e) At times, she is not responsive to the child's cues. For example, one time she was focused on setting up mats to play on when the child was crying and needed her attention.

f) Sometimes the mother appropriately reacts when the child cries – at other times she doesn't.

g) She doesn't always supervise the child while changing his diaper.

h) Workers usually need to intervene once at each visit to assist her.

i) The mother is not always able to fill the time during the visit as she sometimes packs up and puts the child in his car seat to leave when there is still time left in the visit.

j) The mother has had limited insight into the child's medical needs.

[51] The workers set out the following positive aspects of the mother's access visits:

a) She is loving and affectionate with the child. She tells the child she loves him, cuddles, soothes and kisses him.

b) She is always happy to see the child. She picks him up right away when she sees him.

c) She has been consistent coming to visits since August 2018.

d) She comes on time for the visits.

e) For the most part, she is able to meet the child's instrumental needs on visits.

f) She always remembers to change the child's diaper. She also changes the child's clothes if they get wet or soiled.

g) She is able to properly burp the child after feedings and gives him his bottle.

h) She always tidies up after herself at the conclusion of visits.

i) Ms. Southey-Pillig testified that for the most part, the visits are going well. She said that the child knows the mother and enjoys his time with her.

[52] Ms. Southey-Pillig also testified that the child will go to the foster mother to be comforted if both the mother and the foster mother are in the same room.

Part Four – Legal Considerations

4.1 - The Law on Access to Crown Wards Prior to Legislative Changes

[53] Prior to the proclamation of the Act on April 30, 2018, the test for access to Crown Wards (the old access test) was set out in subsection 59(2.1) of the CFSA. It was a strict test. See: Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 (par. 44) (Kawartha). This subsection read as follows:

59(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.

[54] The onus was on the person seeking access (usually the parent) to establish that the relationship for the child was meaningful and beneficial. There was a presumption against access. Opportunities for adoption were prioritized over other considerations. See: Kawartha (par. 46).

[55] A number of principles developed in the jurisprudence that made it difficult for the parent to prove that his or her relationship with the child was beneficial and meaningful under the old access test. These included:

a) A "meaningful" relationship is one that is "significant." Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough -- it must be significantly advantageous to the child. See: Children's Aid Society of Niagara v. M.J.; Children's Aid Society of Niagara Region v. J.C..

b) More is required than just a display of love or affection between parent and child for it to be found beneficial and meaningful. More than a biological connection is required. The court must consider whether the beneficial aspects of visits outweigh the child's need for continuity of care and a secure place as a member of a stable family. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

c) Even if there are some visits that are pleasant, that is not determinative. The parents have to show more than just that a child has a good time during visits. See: Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523.

d) Clause 59(2.1)(a) of the Act speaks to an existing beneficial and meaningful relationship between the person seeking access and the child, and not a future relationship. See: Children's Aid Society of Niagara v. M.J., supra.

[56] When the CFSA was amended in 2006 and then again in 2011 to first introduce and then expand the concept of openness post-adoption, many courts interpreted these amendments to take a broader view to access to Crown Wards (as they were then called). Courts observed that they were no longer required to choose between no access for the purpose of adoption and access to the parents. For the openness amendments to be meaningful, the court should consider the future benefits of an openness order in assessing if the child's relationship with a parent was beneficial and meaningful. This was the approach taken in Catholic Children's Aid Society of Toronto v. M.M., [2012] O.J. No. 3240 (OCJ) at paragraph 212 where Justice Ellen Murray wrote:

In my view, the amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family affects the analysis in both prongs of the s. 59(2.1) test.

[57] In considering the beneficial and meaningful portion of the test, Justice Murray found that maintaining a connection and knowing your roots is significant in this consideration. She indicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered.

[58] This more expansive approach to the old access test was also taken in Children's Aid Society of Toronto v S.A., R.M. and S.R., 2012 ONCJ 42, Catholic Children's Aid Society of Toronto v. C.C., 2015 ONCJ 334 and Children's Aid Society of Toronto v. A.G., 2015 ONCJ 331.

[59] However, the A.G. case referred to in paragraph 58 was successfully appealed and the appeal court determined that it was improper to import considerations of openness into the beneficial and meaningful test. The court stated that courts must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.

[60] Under the old access test, even if the parent could demonstrate that their relationship with the child was beneficial and meaningful at the time of the hearing, they also had to prove that an access order would not impair the child's future opportunities for adoption. This was also a difficult onus for the parents to meet as the following principles developed in the jurisprudence:

a) The operative words of clause 59(2.1)(b) – "will not impair" – place an onus on the parents to satisfy the court that access to the Crown Ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. See: CCAS v. L.S. & W.D., 2011 ONSC 5850 (par. 427).

b) Courts should look at whether continued access will scare off adopted parents or delay the adoption process. See: Children's Aid Society of the Regional Municipality of Waterloo v. M. (L.), 2013 39 R.F.L. (7th) 154 (Ont. S.C.J.).

c) The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369.

[61] In Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376, the court found that the focus of subsection 59(2.1) of the CFSA is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of subsection 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion.

4.2 Legislative Changes

[62] The law for access to children in extended society care (the new access test) changed significantly when the Act was proclaimed in force. See: Kawartha (paragraph 47).

[63] Subsection 105(4) of the Act states that where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101(1) or clause 116(1)(c), any order for access made under Part V of the Act with respect to the child is terminated.

[64] Subsections 105(5) and (6) of the Act set out when the court can make or vary an access order to a child placed in extended society care. These subsections read as follows:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child's best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

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

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[65] Courts have interpreted the new access test differently.

[66] In Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453, the court questioned whether the legislative changes regarding access to children in extended society care from the CFSA to the CYFSA would have much effect and interpreted them narrowly. The court imported the meaning of beneficial and meaningful from pre-CYFSA case law and agreed with pre-CYFSA case law that the court should not consider the possibility of any openness application. The court wrote at paragraph 41:

While the 'beneficial/meaningful relationship' consideration is demoted in importance under the CYFSA, in fact, if the relationship is not shown to be beneficial and meaningful, then it is strike one and two against the mother. If impairment of future adoptability is relevant in the circumstances of this case, and the mother does not show that access will not impair future adoptability, then it is a virtual strike three against her.

[67] In Children's Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, the court found that there continued to be a presumption against access in the Act. The court also applied pre-CYFSA case law in determining whether access was beneficial and meaningful for the children.

[68] The society asks the court to apply these cases in determining the child's best interests and in particular, whether the child's relationship with the mother is beneficial and meaningful.

[69] A wider interpretation of the legislative changes was taken in Family and Children's Services of Guelph & Wellington County v. T.S., 2018 ONCJ 411. The court wrote the following at paragraphs 52 to 54:

[52] In the result, beneficialness and meaningfulness is no longer the sole criterion (apart from the adoption question) defining the access onus. Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria.

[53] The question addressed in D.D.D.H. is whether beneficialness and meaningfulness should be interpreted as it was under the CFSA: see Children's Aid Society of Niagara Region v. J.(M.). Nothing in the wording of the CYFSA appears to bar applying the prior interpretation; however, given that this new criterion is merely one of fourteen considerations, will the prior interpretation risk giving it greater weight than it merits under the new regime?

[54] I found the J.(M.) interpretation of "significantly advantageous" stands a risk of overpowering the other 13 criteria in subsection 74(3) and found this interpretation should be amended to mean that the access relationship at the time of trial was both "positive" and "important" to the child since, in my mind, these words appear contextually compatible with the balance of the subsection 74(3) considerations whereas significantly advantageous reads as an overriding consideration.

[70] The principle that the beneficial and meaningful consideration wasn't more important than any of the other best interest factors was followed in Children's Aid Society of London and Middlesex v. N.H., 2018 ONSC 1582, although access was not ordered. This approach was also followed in Children's Aid Society of Peel v. C.D., 2018 ONCJ 917 and in Children's Aid Society of the Region of Peel, 2018 ONCJ 628, where in circumstances similar to this case, Justice A.W.J. Sullivan ordered access between the mother and her two-year-old twins.

[71] In Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 659, Justice Melanie Sager stated that the access test should be given a liberal and flexible interpretation and thoughtfully articulated the basis for doing so, writing at paragraphs 138 to 143 as follows:

138 The starting point of this analysis must be an acknowledgment that the CYFSA provides that an existing access order is automatically terminated if the final disposition is an order placing the child in extended society care unless the party seeking access can demonstrate that ongoing contact is in the child's best interests.

139 The presumption against access to a child who is placed in extended care must be considered in light of the paramount purpose of the CYFSA, "to promote the best interests, protection and well-being of children." It therefore must be presumed under the CYFSA that in order to promote the best interests, protection and well-being of children placed in extended society care, outstanding access orders must be terminated -- unless the person seeking access can rebut that presumption. A determination of whether access is in a child's best interest includes a consideration of whether the child enjoys a relationship with the access parent that is beneficial and meaningful to the child.

140 With the enactment of the CYFSA on April 30, 2018, came a new test for the court to apply when a party requests access to a child placed in extended society care. The test under the predecessor legislation was quite rigid and difficult for a parent to meet as they were required to demonstrate that their relationship with the child is beneficial and meaningful to the child, and that an order for access will not impair the child's future opportunities for adoption. Under the CYFSA, the court must consider as part of the best interests analysis whether the relationship between the person seeking access and the child is beneficial and meaningful. The court is no longer required to find that the relationship is beneficial and meaningful before granting an order for access to a child placed in extended society care. The court must also consider, if relevant, whether an order for access may impair the child's future opportunities to be adopted. These are additional mandatory considerations to the best interest test.

141 The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all.

142 As the best interest analysis involves a consideration of what could be numerous factors, there cannot be a hard and fast rule as to how much weight a court must give any one factor including whether the relationship between the party seeking access and the child is beneficial and meaningful to the child (emphasis mine). That must be determined on a case by case basis, by weighing all the relevant factors against the particular needs of the child before the court. This is a significant departure from the rigid test in the predecessor legislation.

143 For some children who are the subject of an order of extended society care, a relationship with a parent may be in their best interests for a myriad of reasons. Some of those reasons would not have been sufficient to demonstrate a beneficial and meaningful relationship under the predecessor legislation to the CYFSA. The court ought not be confined to a one-dimensional definition of beneficial and meaningful under the CYFSA, as to do so would be to potentially ignore the variety of needs children have as a result of being removed from their parents' care, both at the date of the order and in the future. For this reason, the test was altered in a significant way to one of best interests (emphasis mine).

[72] Justice Sager's more flexible interpretation of the new access test has been endorsed in several cases. See: Catholic Children's Aid Society of Toronto v. R.H., 2018 ONCJ 854; Children's Aid Society of the Regional Municipality of Waterloo v. J.D., 2018 ONCJ 963 and L.M. v. Children's Aid Society of the Region of Peel, 2019 ONSC 1566.

[73] This court also strongly endorses Justice Sager's approach to the new access test.

4.3 Kawartha

[74] The judicial debate about whether the legislative changes regarding access for children in extended care should be interpreted narrowly or broadly was resolved in the recent Kawartha decision.

[75] The Court of Appeal wrote the following:

a) The changes to the access test are significant (par. 47).

b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).

c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities (par. 49).

d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).

e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).

f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49).

g) The court should reference the best interest considerations in subsection 74(3) of the Act in making its decision (par. 53).

h) The "presumption against access" to "Crown Wards" test no longer exists (par. 53).

[76] The best interests factors set out in subsection 74(3) of the Act now take on heightened importance under the new access test. This subsection reads as follows:

Best Interests of Child

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

4.4 Discussion

[77] The Act is remedial legislation and should be interpreted broadly to achieve its primary objective set out in section 1 of the Act - "to promote the best interests, protection and well-being of children". See: Kawartha, supra, paragraph 38.

[78] Kawartha clearly states that the new access test represents a significant shift in the approach to access for children in extended care – a more expansive approach. This court will address the best interests analysis with this in mind.

[79] The narrow pre-CYFSA approach to the definition of beneficial and meaningful is inconsistent with the legislative changes and the approach to access to children in extended society care articulated in Kawartha - in particular, the pre-CYFSA principles that:

a) The relationship with the parent must be significantly advantageous to a child;

b) Future benefits to a child cannot be considered; and

c) The prospect of an openness order cannot be considered.

[80] Kawartha makes it clear that the new access test is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. Even if the court did choose to adopt the stricter version of the beneficial and meaningful test, it can still now consider other benefits of access (other than significantly advantageous benefits) as part of its best interests analysis.

[81] When a court considers a child's best interests it should consider all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions - there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children.

[82] The new access test should also not be interpreted in a vacuum. It is the natural progression in the evolving approach towards the relationship between parents and their children who are placed in permanent care, as well as to how we view these relationships post-adoption. These changes are best reflected in the amendments increasing the availability of openness orders for families.

[83] These legislative changes, that began incrementally under the CFSA and which have been expanded in the CYFSA, reflect a reality that an outright severance of a parent-child relationship is not always appropriate and often not in a child's best interests.

[84] The Act envisions that access orders will sometimes change to openness orders. There is no need to ignore that reality. This is reflected in subsection 105(7) of the Act that mandates the court to name who is an access holder and who is an access recipient when it orders a child to be placed in extended society care. The importance of this subsection is that only an access holder has the right to bring an openness application, if and when the society files a notice of intention to place a child for adoption under section 195 of the Act.

[85] With these changes, the comments made by Justice Ellen Murray in Catholic Children's Aid Society of Toronto v. M.M., supra (see paragraph 56 above) resonate even stronger now and are consistent with the spirit of the new access test.

[86] It is also consistent with the commentary in Kawartha to consider the potential benefits of an access order that may (or may not) transition into an openness order in determining a child's best interests – the Act should be looked at as a whole. Its components should not be artificially put in silos. Whether these benefits are assessed under the beneficial and meaningful consideration or as part of the more general best interests considerations is really just a matter of form and not substance.

[87] At any openness hearing, the best interests of the child will again be the primary consideration. If an openness order is not in the child's best interests, contact with the access holder will end. At this point, the court is not considering the benefits of an openness order – rather it is merely recognizing that it doesn't have to disregard the future benefits of access just because a custody order terminates when a notice of intention to place a child for adoption is served on the parent – the openness option will still be available.

[88] While the onus is still on the mother to satisfy the court that an access order is in the child's best interests, there is no longer a presumption against access and the court is not constrained by the narrow pre-CYFSA case law in making this determination.

Part Five – Access Analysis

5.1 Beneficial and Meaningful

[89] It is difficult to assess how meaningful a relationship is for a 15-month-old child. It is clear that the child's most meaningful relationship is with his foster mother. He does recognize the mother and is happy to see her.

[90] However, even if his present relationship with the mother has limited meaning to the child, there is a real possibility that this relationship will become meaningful to the child as he ages – to better understand his roots and his place in the world and to develop a deeper understanding of his identity.

[91] The court took into consideration the following factors that would militate against making an access order:

a) The child has never been in the mother's care.

b) The child is with a foster mother who has become his psychological parent.

c) The mother showed minimal interest in the child's health – particularly when he was hospitalized. She missed most medical appointments for him.

d) The mother makes few inquiries about the child's health.

e) The mother rarely saw the child for the first six months of his life.

f) The mother has historically been unable to parent her children.

g) The mother has many parenting limitations – her access needs to be fully supervised.

[92] However, there are a number of benefits to the child's relationship with the mother. These include:

a) The mother is loving and affectionate with him at visits. The mother is always happy to see him. She picks him up right away when she sees him and constantly tells him that she loves him.

b) The mother is consistent on the visits and comes on time. She hasn't missed a visit since September 2018.

c) The mother looks after his instrumental needs, for the most part, on the visits.

d) The visits are a positive experience for him. He recognizes the mother and is happy when he sees her.

e) Access permits him to maintain a connection with a biological parent.

f) Access will permit him to better understand his roots, Ethiopian culture and language.

g) He will have another person in his life who will care about and love him.

h) Access could mean that his medical information and family history will be more readily available.

i) The mother is open to parenting instruction.

j) The mother is calm during access. She does not display the anger issues she had with her older children.

[93] The court finds that the benefits of the child's relationship with the mother outweigh its detriments and that the child's relationship with the mother is beneficial.

5.2 Impairment of Child's Future Opportunities for Adoption

[94] Pursuant to subsection 105(5) of the Act, the court must consider whether access would impair a child's future opportunities for adoption, if relevant.

[95] When we are discussing the future of a 15-month-old child, this factor will almost always be relevant. Permanency planning, which would be adoption in this case, should not be delayed for the child.

[96] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters won't, and will be ordered. See: Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087.

[97] In Children's Aid Society of Toronto v. R.C., 2016 ONCJ 335, Justice Robert Spence wrote at paragraph 133:

Obviously, a parent who seeks access following the making of a Crown wardship order cannot prove conclusively that she will not impair her child's opportunities for adoption. However, what the mother can do, is adduce evidence that raises a prima facie case in her favour. It would then fall to the society to rebut that prima facie case.

[98] In paragraphs 166 to 169 of Children's Aid Society v. A.F., 2015 ONCJ 678, this court discussed the attributes of a parent that would impair a child's future opportunities for adoption. They are as follows:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[99] The absence of these attributes will constitute evidence in support of a position that access to that parent would not impair a child's future opportunities for adoption.

[100] The evidence indicates that the mother does not possess any of these attributes.

[101] Ms. Douglas, one of the society workers cross-examined by the mother, described the mother in cross-examination as very pleasant, sweet and easygoing. She said that the mother had never been confrontational with her. She said that the mother is always courteous to the child's foster mother when they meet at visits.

[102] Ms. Southey-Pillig, the other society worker cross