The Children's Aid Society of Toronto v. J.G.
[Indexed as: Children's Aid Society of Toronto v. G. (J.)]
Ontario Reports
Court of Appeal for Ontario
Doherty, Hourigan and Benotto JJ.A.
June 25, 2020
151 O.R. (3d) 320 | 2020 ONCA 415
Case Summary
Family law — Children — Access — Best interests of child — Trial judge awarding access based on expansive inquiry under Child, Youth and Family Services Act — Appeal judge finding trial judge's interpretation in error and overturning access order — Trial judge did not err in liberal interpretation of remedial legislation enacted to protect vulnerable children — Trial judge properly took into account future considerations and child's medical information in assessing whether relationship with mother was beneficial and meaningful — Trial judge's decision restored — Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 74(3).
The appellant had five children in care of the respondent. A mini-trial was held arising from a summary judgment motion for protection by the respondent of the appellant's youngest child, age two. The appellant did not dispute that extended care was appropriate and sought only continued access. The respondent urged the court to follow a line of cases dating back to the Child and Family Services Act that applied a narrow interpretation as to whether an access relationship was "beneficial and meaningful" to the child. The trial judge rejected that approach and determined, based on the wording of the replacement legislation, the Child, Youth and Family Services Act ("CYFSA"), [page321] that a more expansive inquiry was required. The trial judge observed that a child's best interests include all relevant factors, whether they be past, present or future considerations. The trial judge considered as one of the benefits of access that it could mean that the child's medical information and family history would be more readily available. The appellant was granted access to the child at the respondent's discretion. The respondent appealed the decision to the Superior Court of Justice. The appeal judge concluded that the trial judge erred by assigning a new definition to the words "beneficial and meaningful", by taking future considerations into account, and by referring to the child's medical information and family history. The appeal judge applied the old restrictive test and overturned the decision. The appellant appealed.
Held
The appeal should be allowed.
The test for access under the CYFSA changed the meaning of a "beneficial and meaningful" relationship. The CYFSA was remedial legislation enacted for the protection of society's most vulnerable children. It had to be liberally construed to the benefit of the child. The access test had become a best interests test with a statutory requirement to consider whether the relationship was beneficial and meaningful for the child as one aspect of that analysis. There was no longer a presumption against access.
The trial judge did not err by taking future considerations into account. A court considering a child's best interests should consider all relevant factors, including past, present and future, as such interests clearly are not static. That was borne out by the statutory definition of "best interests", which spoke of development, continuity, possible effects of disruption, and risk that a child may suffer harm through being removed.
The trial judge did not err by referring to the child's medical information and family history. The appeal judge found that to be entirely speculative. However, the child had significant medical issues as a result of a premature birth so there was no error in the trial judge's common-sense conclusion that the child could benefit from some sort of continuing contact with his biological mother. Further, that factor was only one of ten listed by the trial judge in his consideration of the benefits of access.
Jewish Family & Child Service of Greater Toronto v. B. (E.K.), [2019] O.J. No. 5855, 2019 ONSC 6214, affg Jewish Family & Child Service of Greater Toronto v. B. (K.), [2018] O.J. No. 4918, 2018 ONCJ 650; Kawartha-Haliburton Children's Aid Society v. W. (M.), [2019] O.J. No. 2029, 2019 ONCA 316, revg [2018] O.J. No. 2399, 2018 ONSC 2783 (Div. Ct.); M. (L.) v. Peel Children's Aid Society (2019), 149 O.R. (3d) 18, [2019] O.J. No. 5440, 2019 ONCA 841, apld
Huron-Perth Children's Aid Society v. L. (J.), [2019] O.J. No. 5132, 2019 ONCA 809, distd
Children's Aid Society of Niagara Region v. P. (B.), [2018] O.J. No. 3792, 2018 ONSC 4371, not folld
Children's Aid Society of the Districts of Sudbury and & Manitoulin v. H. (C.), [2018] O.J. No. 3675, 2018 ONCJ 453, consd
Other cases referred to
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43; Catholic Children's Aid Society of Toronto v. H. (R.), [2018] O.J. No. 6405, 2018 ONCJ 854; Catholic Children's Aid Society of Toronto v. P. (A.), [2019] O.J. No. 4647, 2019 ONCJ 631; Children's Aid Society of Halton Region v. O. (S.), [2019] O.J. No. 1446, 2019 ONCJ 121; Children's Aid Society of Peel v. D. (C.), [2018] O.J. No. 6926, 2018 ONCJ 917; Children's Aid Society of the Niagara Region v. J. (M.), [2004] O.J. No. 2872, [2004] O.J. No. 2872, [2004] O.T.C. 634 (S.C.J.); Children's Aid Society of the Regional Municipality of Waterloo v. D. (J.), [2018] O.J. No. 7067, 2018 ONCJ 963; Children's Aid Society of Toronto v. M. (Y.), 2019 ONCJ 489, [2019] O.J. No. 3538, [page322] 2019 ONCJ 489; Children's Aid Society of Toronto v. S. (R.), [2019] O.J. No. 6149, 2019 ONCJ 866; Children's Aid Society of Toronto v. G. (J.), [2020] O.J. No. 728, 2020 ONSC 1135, revg, [2019] O.J. No. 2588, 2019 ONCJ 333; Family & Children's Services of Guelph & Wellington County v. S. (A.I.), [2018] O.J. No. 3279, 2018 ONCJ 410; Family & Children's Services v. S. (B.), [2019] O.J. No. 5813, 2019 ONSC 6577; Family & Children's Services of Guelph & Wellington County v. S. (T.), [2018] O.J. No. 3280, 2018 ONCJ 411; Highland Shores Children's Aid Society v. G. (J.), [2019] O.J. No. 4776, 2019 ONSC 5476; M. (L.) v. Children's Aid Society of the Region of Peel, [2019] O.J. No. 1411, 2019 ONSC 1566; R. v. O. (A.) (2007), 2007 ONCA 144, 84 O.R. (3d) 561, [2007] O.J. No. 800 (C.A.)
Statutes referred to
Child and Family Services Act, R.S.O. 1990, c. C.11 [rep.], s. 59
Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1, ss. 1(1), (2), 105(5), (6), 74(3), (c)
Rules and regulations referred to
Family Law Rules, O. Reg. 114/99, rule 16(6.2)
Authorities referred to
Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
Ontario, Ministry of Children and Youth Services, Report on the 2015 Review of the Child and Family Services Act
APPEAL from the judgment of Shore J., [2020] O.J. No. 728, [2020 ONSC 1135](https://www.minicounsel.ca/scj/2020/1135) overturning an access order.
Andrew Burgess and Jessica Gagne, for appellant.
Ian Ross and Elizabeth McCarty, for Intervener the Office of the Children's Lawyer.
Simon Fisch and Karen Freed, for respondent Children's Aid Society.
The judgment of the court was delivered by
BENOTTO J.A.: —
[1] Historically, it has been difficult for a biological parent to obtain the right to access a child placed in the extended care of a Children's Aid Society (previously called "Crown Wardship"). There was a legislated presumption against access and there was a strict test to be met. The legislation at the time, the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), required that an applicant establish that the relationship "is beneficial and meaningful" to the child and that the access would not impair the child's opportunities for adoption. This changed in 2018 when the CFSA was repealed and replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 ("CYFSA"). The new legislation reflected a change in the approach to many aspects of child protection law, relating to children in care, including access. The former strict interpretation of [page323] a "beneficial and meaningful" relationship was expanded to incorporate a broadly-based best-interests analysis.
[2] This court has referred to the significance of the change on more than one occasion. Yet, some lower courts continue to apply jurisprudence based on the old restrictive test.
[3] Here, the trial judge applied the new approach to the determination of access for a mother and ordered access at the discretion of the children's aid society. The appeal judge applied the old restrictive test, allowed the appeal and overturned the decision.
[4] For the reasons that follow, I would allow the appeal and restore the trial judge's order.
Facts
[5] The underlying facts are not disputed.
[6] The appellant is the mother of A.G., who is two years old. The child is the fifth child born to the appellant. The other four children are in care. The facts articulated in the decisions below with respect to A.G. and the four siblings clearly establish that the mother is not able to care for the child. In fact, she did not dispute the finding that the child be in the extended care of the respondent, the Children's Aid Society of Toronto (the "Society"). She only seeks continued access. The visits had been once-a-week on a fully supervised basis at the Society offices. The father of the child took no part in the proceedings.
Decisions Below
The Ontario Court
[7] The matter came before Sherr J. of the Ontario Court as a summary judgment motion for protection by the Society [reported at Children's Aid Society of Toronto v. G. (J.), [2019] O.J. No. 2588, 2019 ONCJ 333]. He conducted a mini-trial in accordance with rule 16(6.2) of the Family Law Rules, O. Reg. 114/99. As part of that process he requested more evidence and heard oral evidence from the mother. Ultimately the mother consented to an extended society care order and the only issue before the court was her access to the child. Both the Society and the mother asked the court to make the determination on the basis of the evidence presented.
[8] The trial judge set out in detail the positive and the negative aspects of the mother's visits with the child. He also considered the pros and cons of the mother's continued relationship with the child. One of the benefits of an ongoing relationship with the child included the fact that access to the child's medical information and family history would be more readily available.
[9] The Society urged the court to follow the line of cases dating back to the CFSA that narrowly interpreted the words "beneficial [page324] and meaningful". The trial judge rejected that approach and determined, based on the wording of the CYFSA and this court's decisions interpreting it, that a more expansive inquiry was required.
[10] On the basis of this more expansive inquiry, he concluded that the benefits of the mother's relationship with the child outweigh any detriments and that the relationship would be beneficial and meaningful for the child. He found that it was now, and would be in the future, in the child's best interests for the biological mother to have access to the child at the discretion of the Society.
The Superior Court
[11] The Society appealed the order allowing the mother access to the child at its discretion [reported at Children's Aid Society of Toronto v. G. (J.), [2020] O.J. No. 728, 2020 ONSC 1135].
[12] The appeal judge concluded that the trial judge erred in assigning a new definition to the words "beneficial and meaningful" under the CYFSA. She reviewed the case law on the interpretation of the meaning of "beneficial and meaningful" and the different interpretations. She concluded that the more restrictive approach still applied. She also found that the trial judge erred by considering the potential for a future relationship because the court is called upon to consider whether the relationship "is" beneficial and meaningful, not whether it will become so in the future. Finally, she found that it was an error of law for the trial judge to refer to the future need for medical information, as this was entirely speculative.
Issues on this Appeal
[13] There are three related issues on this appeal:
(i) Has the test for access under the CYFSA changed the meaning of a "beneficial and meaningful" relationship?
(ii) Can the benefits of a future relationship be considered? and
(iii) Did the trial judge err by referring to the child's medical information and family history?
Background
[14] I will set out the legislative history and the case law. I will then discuss the significance of the changes in the CYFSA with respect to the determination of access.
(1) Legislative history
[15] Since 2004, the statute dealing with children in need of protection was the CFSA. Access to "Crown wards" was governed by s. 59, which stated: [page325]
Access: Crown ward
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.
[16] The legislation also prevented a child from being adopted if there was an outstanding access order. When a child was about to be placed for adoption, the court was prevented from granting an access order except in extraordinary circumstances. Since courts had to choose between an access order or permanency for a child, the common law interpretation of the test for access to a Crown ward under the former CFSA was extremely, and intentionally, restrictive.
[17] In 2011, the Legislature amended the CFSA to allow a child to be placed for adoption even when there was an outstanding access order. The amendments established a process for a Society to administratively terminate an access order by serving a notice of intention to place a child for adoption on persons named in the access order. The amendments broadened the ability for children to continue to have some form of contact with people who are important to them through "openness" after adoption. However, the test for access to a Crown ward did not change and courts continued to apply the same strict approach.
[18] On April 30, 2018, the CFSA was replaced with the new CYFSA. The new legislation aimed to reduce the stigma of children in care, address Indigenous issues and import a broad best interests analysis into the determination of access.
[19] There were many changes. Children who were previously described as "Crown wards" are now referred to as "in extended Society care".
[20] The two-part test for access in s. 59 was replaced with a holistic consideration of the child's best interests. This is set out in ss. 105(5) and (6):
When court may order access to child in extended society care
105(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), [page326]
(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.
(Emphasis added)
[21] Pursuant to s. 74(3), "best interests of a child" is a defined term that encompasses a very broad range of considerations:
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 [page327]
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
(2) Judicial interpretations
[22] After the coming-into-force of the CYFSA, two lines of cases developed. Both professed to follow the new law. One line of cases followed the old test. The other line of cases took an expansive approach.
[23] I turn to the case law under the CFSA and then refer to the two conflicting approaches that followed the implementation of the CYFSA.
Case law under the [CFSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)
[24] The most often cited case propounding the restrictive approach is Children's Aid Society of the Niagara Region v. J. (M.), [2004] O.J. No. 2872, at paras. 45 and 46. In it, Quinn J. looked to the dictionary definition of the words "beneficial and meaningful" under the CFSA:
What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." 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.
He also addressed the pertinence of the future relationship:
I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.
[25] As time went by, judges routinely used the phrase "significantly advantageous" when interpreting the legislated "beneficial and meaningful" test. This was the genesis of the first line of cases.
Case law under the [CYFSA](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)
[26] After the new legislation came into force, the test set out by Quinn J. continued to be applied in some cases, e.g., Children's Aid Society of Niagara Region v. P. (B.), [2018] O.J. No. 3792, 2018 ONSC 4371 and Children's Aid Society of the Districts of Sudbury & Manitoulin v. H. (C.), [2018] O.J. No. 3675, 2018 ONCJ 453.
[27] In Niagara, Pazaratz J. adopted the "significantly advantageous" term and also concluded that only the existing relationship be considered, not the future one. He also found that there remains a "presumption against access" under the CYFSA. [page328]
[28] In Manitoulin, Kukurin J. acknowledged that the CYFSA altered the test for access to a child in extended care but, for the terms "beneficial and meaningful" and "impair adoption", he concluded at para 13:
. . . it might be argued that these have come down a notch in terms of importance, that they represent just two more factors among several that must be taken into account under the best interests analysis under the CYFSA, that they are no longer statutorily included as prerequisites for the access applicant; they are simply judicial considerations. I do not believe that this is really the end result of the legislative changes.
[29] Other courts have taken a different approach, reflecting a flexible interpretation of the test. The approach is summarized by Sager J. in Jewish Family & Child Service of Greater Toronto v. B. (K.), [2018] O.J. No. 4918, 2018 ONCJ 650, at paras. 141-43, affd Jewish Family & Child Service of Greater Toronto v. B. (E.K.), [2019] O.J. No. 5855, 2019 ONSC 6214:
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.
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. 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.
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 in original)
[30] This test has been endorsed and followed in numerous cases: Catholic Children's Aid Society of Toronto v. H. (R.), [2018] O.J. No. 6405, 2018 ONCJ 854; Children's Aid Society of the Regional Municipality of Waterloo v. D. (J.), [2018] O.J. No. 7067, 2018 ONCJ 963; M. (L.) v. Children's Aid Society of the Region of Peel, [2019] O.J. No. 1411, 2019 ONSC 1566; Family & Children's Services of Guelph & Wellington County v. S. (A.I.), [2018] O.J. No. 3279, 2018 ONCJ 410; Catholic Children's Aid Society of Toronto v. P. (A.), [2019] O.J. No. 4647, 2019 ONCJ 631; Children's Aid Society of Toronto v. S. (R.), [page329] [2019] O.J. No. 6149, 2019 ONCJ 866; Family & Children's Services v. S. (B.), [2019] O.J. No. 5813, 2019 ONSC 6577; Children's Aid Society of Halton Region v. O. (S.), [2019] O.J. No. 1446, 2019 ONCJ 121; Children's Aid Society of Peel v. D. (C.), [2018] O.J. No. 6926, 2018 ONCJ 917; Jewish Family & Child Service of Greater Toronto v. B. (K.), supra, at para. 144; Highland Shores Children's Aid Society v. G. (J.), [2019] O.J. No. 4776, 2019 ONSC 5476, at paras. 121-23; Children's Aid Society of Toronto v. M. (Y.), [2019] O.J. No. 3538, 2019 ONCJ 489, at paras. 305-308; Catholic Children's Aid Society of Toronto v. H. (R.), supra, at paras. 99-101; Family & Children's Services of Guelph & Wellington County v. S. (T.), [2018] O.J. No. 3280, 2018 ONCJ 411, at para. 54; and Children's Aid Society of the Regional Municipality of Waterloo v. D. (J.), supra, at para. 74.
Discussion
[31] The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.
[32] I therefore begin with a broad consideration of the scheme of the CYFSA and its object.
[33] A requirement of the CFSA was that the Minister publicly review the Act, or specified provisions of it, every five years. These reviews were to be conducted by the Ministry of Children and Youth Services to enable the government to better understand how its laws, programs and policies are experienced on the ground. The information gathered as part of these reviews provided an opportunity for learning and change, and also supported the Ministry and its partners to provide high-quality services for children, youth and families in Ontario. In September 2014, the third legislative review of the CFSA was announced.
[34] The 2015 review[^1] stressed the need for change for children in protection proceedings. It recommended a change in the language to reflect the realities of families and also recommended a change to the test for access to "Crown wards". The CYFSA achieved both these objectives.
[35] As this court said in Kawartha-Haliburton Children's Aid Society v. W. (M.), [2019] O.J. No. 2029, 2019 ONCA 316, and in M. (L.) v. Peel Children's Aid Society (2019), 2019 ONCA 841, 149 O.R. (3d) 18, [2019] O.J. No. 5440, [page330] the new Act reflected a significant change for children in care. Theage for protection was raised from 16 to 18. The archaic and stigmatizing term "Crown ward" was replaced with "extended society care". Other key changes included:
- Making services more culturally appropriate for all children and youth in the child welfare system, including First Nations, Inuit, Métis, to ensure that they receive the best possible supports;
- Focusing on early intervention, to assist in preventing children, youth and families from reaching crisis situations in the home; and
- Improving review of service providers to ensure that children and youth receive consistent, high-quality services across Ontario.
[36] The paramount purpose of the Act remained as it had been: "to promote the best interests, protection and well-being of children" (s. 1(1)). Other purposes in s. 1(2) emphasize the best interests of children:
1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
Services to children and young persons should be provided in a manner that,
i. respects a child's or young person's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,
iii. takes into account a child's or young person's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
iv. takes into account a child's or young person's
cultural and linguistic needs, [page331]
v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and
vi. includes the participation of a child or young person, the child's or young person's parents and relatives and the members of the child's or young person'sextended family and community, where appropriate.
Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.
Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.
First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.
[37] Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child's "best interests" predominant in determining access. As stated by this court in Kawartha [at para. 48] and repeated in Peel, the change was not "just semantics" but represented "a significant shift in the approach to access for children in extended care". Some of the changes to the test for access include:
The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child's future adoption opportunities.
When the court undertakes a best interests analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant;
There is no longer a "presumption against access" and it is no longer the case that a parent who puts forward no evidence will not gain access. and
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.
The changes referred to in Peel include:
Highlighting in the first statement of the Preamble that children are "individuals with rights to be respected and voices to be heard" and ensuring that children's wishes are considered and given due respect when any decision is made that affects their lives; [page332]
Confirming that the aim of the CYFSA is to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child;
Expanding the protections and unique considerations for all First Nations, Inuit and Métis children;
Expanding the age of "protection" to include 16 and 17 year olds; and
Specifically referencing siblings in the non-exhaustive list of persons who may seek access. This inclusion was made to specifically "promote the consideration of [sibling] access application[s], and as part of efforts to promote the rights and voice of children throughout the Act".
[38] These changes and this court's statements clearly inform the analysis of the three issues articulated in this case. I turn to those issues now.
Issue 1: Has the test for access under the [CYFSA](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html) changed the meaning of a "beneficial and meaningful" relationship?
[39] The respondent points out that the CYFSA did not change the words "a relationship between the person and the child is beneficial and meaningful to the child". The respondents contend that, with the words still intact, the interpretation of the phrase stands, and the pre-CYFSA interpretation still applies. To support this proposition, the respondent relies on this court's decision in Huron-Perth Children's Aid Society v. L. (J.), [2019] O.J. No. 5132, 2019 ONCA 809. The respondent says that, in Huron-Perth, this court endorsed the pre-CYFSA definition of beneficial and meaningful.
[40] I do not agree. This court's decision in Huron-Perth offers no support for the respondent's position. The issues in that case had nothing to do with the test for access.
[41] In Huron-Perth, the first appeal judge considered fresh evidence and allowed the parents' appeal on the issue of access, granting access between the parents and children. The parents then appealed to this court on the basis that the first appeal judge had not gone far enough. They submitted that, on the basis of fresh evidence, the trial judge should not only have awarded access but instead should have reversed the Crown wardship/no access order. This court saw no basis to interfere with the first appeal judge's decision to grant access to the parents. This court's decision does not endorse the pre-CYFSA approach to access for it had nothing to do with the access test.
[42] In contrast, this court's decision in Kawartha directly addressed the new access test. Kawartha overturned the Divisional Court decision below [reported at [2018] O.J. No. 2399, 2018 ONSC 2783] [page333] in part because applying the old restrictive access test was identified as a legal error.
[43] The respondent also argues that the 2004 decision in Niagara reflects the proper approach to the determination of the words "beneficial and meaningful". I disagree. It does not advance the scope or purpose of the legislation to apply dictionary definitions of a word or a phrase untethered from the context of the Act.
[44] The respondent further argues that there is no reason to depart from the pre-CYFSA judicial interpretation of "beneficial and meaningful relationship" as meaning a "significantly advantageous" relationship. Again, I disagree. The judicial injection of the words "significantly advantageous" into the analysis may have applied under the old Act but it falls far short of the expansive best interests considerations under the new CYFSA.
[45] The CYFSA is remedial legislation enacted for the protection of society's most vulnerable children. It must be liberally construed to the benefit of the child.
[46] The new access test is no longer a "beneficial and meaningful" test. It 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. When a court considers a child's best interests it should consider all relevant factors, including -- as I discuss below -- whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.
[47] By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that had tended towards termination of access between children and those important to them. Access can be now be ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus "any other circumstance of the case that the person [deciding the case] considers relevant": s. 74(3)(c). Under s.105(6), whether the relationship is "beneficial and meaningful to the child" and only if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption remain relevant, but only as viewed through a global best interests lens.
Issue 2: Can the benefits of a future relationship be considered?
[48] The appeal judge concluded that the trial judge erred in law when he said, at para. 81, that a child's best interests include "all relevant factors, 'whether they be past, present or future considerations'" (emphasis in original). The appeal judge concluded [at para. 60] that "While this would be true for the factors set out in s. 74(3), it does not hold true when considering whether there is a beneficial [page334] or meaningful relationship between the child and the parent." In coming to this conclusion, she relied on Manitoulin which held that the relationship "is" beneficial and meaningful.
[49] I disagree.
[50] The "beneficial and meaningful" test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child's best interests.
[51] The child's best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child's development of a positive relationship; (iii) continuity in the child's care and the possible effect on the child of disruption of that continuity; (iv) 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 (emphasis added).
[52] The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.
[53] The trial judge did not err by taking future considerations into account.
Issue 3: Did the trial judge err by referring to the child's medical information and family history?
[54] The trial judge considered as one of the benefits of access that it "could mean that [the child's] medical information and family history will be more readily available" [para. 92]. The appeal judge concluded [at para. 84] that this was speculation: "There was no evidence presented at trial in this regard and therefore this equates to an error of law."
[55] It was not an error of law to refer to medical history and information for several reasons. First, I have set out above that the best interests analysis properly includes consideration of the future. Second, this factor was only one of ten listed by the trial judge in his consideration of the benefits of access. Third, it was not speculative: the child had significant medical issues as a result of premature birth. There was no error in the trial judge's common-sense conclusion that a child with significant medical issues could benefit from some form of continuing contact with his biological mother.
Presumption and onus
[56] Before concluding, I wish to address the respondent's submissions with respect to presumption and onus.
[57] The respondent submits that there remains a presumption against access and the onus rests with the person seeking access. [page335]
[58] There is no longer a presumption against access. This was confirmed in Kawartha, at para. 31, and Peel, at para. 70.
[59] The issue of onus is more nuanced.
[60] I do not find it helpful to import the concept of onus when the court is required to consider and balance the various factors that affect the life of a child in protection. The court is not called upon to determine past events and to make findings. Instead the court must consider and weigh a number of factors, past, present and future.
[61] There is an analogy here to what has been said of the court's approach when considering whether a young person should be tried in youth or adult court. Like the best interests analysis, the relevant legislation for youthful offenders requires the court to weigh and balance enumerated factors.
[62] In R. v. O. (A.) (2007), 2007 ONCA 144, 84 O.R. (3d) 561, [2007] O.J. No. 800, this court considered the question of onus in connection with the then legislation regarding a transfer of a case from youth to adult court. The court said, at para. 33:
[The section of the Act] refers to an onus of "satisfying" the youth justice court of the matters necessary for the imposition of an adult sentence. This wording tracks the language considered by the Supreme Court of Canada in R. v. M. (S.H.), [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, at pp. 463-64 S.C.R., pp. 546-48 C.C.C. when it assessed the nature of the onus on a party seeking a transfer to adult court . . . Justice McLachlin, as she then was, distinguished an onus "to satisfy" from the criminal onus of proof beyond a reasonable doubt. Speaking for the majority, she said:
Parliament set out in detail the factors which must be weighed and balanced, and stipulated that if after considering them the court was satisfied that it was in the interests of society and the needs of the young person that he or she should be transferred, the order should be made.
Nor do I find it helpful to cast the issue in terms of civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. It makes sense to speak of negligence being established "on a balance of probabilities", or to talk of the commission of a crime being proved "beyond a reasonable doubt". But it is less helpful to ask oneself whether a young person should be tried in ordinary court "on a balance of probabilities". One is not talking about something which is probable or improbable when one enters into the exercise of balancing the factors and considerations set out in [the Act]. The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court.
[Emphasis in original omitted]
[63] Similarly, the court here was not being asked to make findings of fact about past events. A child's best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies. [page336]
Conclusion
[64] The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child's specific needs and age-appropriate wishes.
[65] I adopt the words of Sager J. relied on by the trial judge [at para. 71], as set out in Jewish Family & Child Service [at para. 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.
The trial judge here endorsed this approach and added [at para. 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.
(Emphasis in original)
[66] The trial judge applied the correct approach.
[67] I would allow the appeal and restore the trial judge's determination as to access.
[68] No party requested costs, so I would not order costs.
Appeal allowed.
Notes
[^1]: Ontario, Ministry of Children and Youth Services, Report on the 2015 Review of the Child and Family Services Act (April 1, 2015).
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