COURT FILE NO.: FS-19-10749 DATE: 20200110

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 …

Order excluding media representatives or prohibiting publication

(7) 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.

Prohibition re identifying child

(8) 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.

Prohibition re identifying person charged

(9) 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 …

Offences re publication

(3) 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.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Toronto Appellant – and – J.G. Respondent

Counsel: Karen Freed, for the Appellant Jessica Gagne, for the Respondent

HEARD: October 28, 2019

On appeal from the decision of Justice S. Sherr, dated May 17, 2019.

Shore, J.

[1] This is an appeal by the Children’s Aid Society of Toronto (“CAST”) from the Order of Justice S. Sherr (“Judge”), dated May 17, 2019 (“Reasons”). Specifically, the Appellant submits that the Judge erred in allowing the Respondent Mother (“Mother”) access to her child, A.G., born […], 2018, following an order placing the child in extended society care.

Overview:

[2] The Respondent is a mother to five children. CAST’s concerns with respect to the four other children were already addressed in other court proceedings and all four children were placed in extended society care with CAST. This appeal arises from a trial in regard to the youngest child, A.G.

[3] Prior to the trial, the Mother and CAST reached an agreement. The following orders were made pursuant to a Statement of Agreed Facts:

a. An order making statutory findings pursuant to s. 90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“CYFSA”); b. An order finding the child, A.G., to be in need of protection pursuant to ss. 74(2) (b)(i) and (ii) of the CYFSA; c. An order placing the child, A.G., in extended society care; and d. An order that access by A.G. to his siblings be at the discretion of CAST.

[4] On April 16, 2019, a hearing proceeded before the Judge on the sole issue of the Mother’s access to the child. On May 17, 2019, the Judge made an order inter alia granting access to the Mother at the discretion of CAST. Such access is to be in consultation with the child’s caregivers, fully supervised by CAST or its designate, and to take place a minimum of six times per year for a minimum of one hour per visit. It was further ordered that the Mother and the child be both access holders and access recipients.

[5] CAST is appealing this order.

Grounds of Appeal:

[6] CAST appeals the decision on the following grounds:

a. The Judge made an error in law in his interpretation of a “beneficial and meaningful relationship” as set out in s. 105(6)(a) of the CYFSA and specifically that the principles/definitions established under the CFSA no longer apply. b. The Judge made an error in law by considering that the relationship between the parent and child may become meaningful to the child in the future and failing to consider whether the existing relationship is meaningful to the child. c. The Judge made a palpable and overriding error in finding that access following an order of extended society care would be in the child’s best interest, by considering the benefits on future consideration of an openness order at the time of adoption. d. The Judge erred in fact and law in finding that the Mother should be both an access holder and access recipient, where there was insufficient evidence to support such findings. e. The Judge erred in law by making findings of fact without an evidentiary basis, specifically with respect to: i. The child’s cultural and linguistic heritage; and ii. The mother’s medical and family history.

Standard of Review

[7] The Appellant and Respondent agreed on the standard of review on an appeal from a judge’s order. To summarize:

a. The standard of review applicable on a pure question of law is that of correctness. b. The standard of review applicable on an error of fact and inferences of fact is that of palpable and overriding error. In other words, findings of fact may only be set aside if the trier of fact is found to be clearly wrong. c. Where an appeal raises questions of mixed fact and law: i. If it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error; and ii. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.

[8] An appeal is not a rehearing of the case. This court cannot substitute its own decision for that of the original trial judge and is to give deference when revising the decision of a judge specialized in this area of the law, as is the Judge: see T.L.K v. Children’s Aid Society of Haldimand Norfolk, 2015 ONSC 5665, [2015] O.J. No. 6235, at para. 29.

Facts and Events leading up to the Trial

[9] The facts in this case were not in dispute. The following is a summary of the facts relied on by the Judge at the hearing and set out in the Reasons and which are not at issue in this appeal.

[10] The Mother immigrated to Canada from Ethiopia in 2003. She has a grade four education and cannot read or write in her first language, Oromo.

[11] She has been involved with CAST since 2013, initially in relation to her four other children, A, S, H, and S.G., all of whom were removed from her care in April 2016. Concerns included physical abuse, inappropriate physical discipline, the children’s exposure to domestic violence, and the Mother’s alcohol use. The Mother was charged with assaulting the three oldest children. She pled guilty to assault on A. I am not going to go into further details of the protection concerns for the other children. The Respondent does not contest that the children were all in need of protection. She does not contest that A is also in need of protection. This case is solely about whether she should have access to A now that he has been placed in extended society care.

[12] None of the other children were returned to the Mother’s care. A and S were placed in the legal custody of their biological father, who lives in Alberta. H was placed in the care of her biological father. S.G. was made a Crown Ward (under the old legislation) on January 3, 2018, with no access to either parent.

[13] T.H. is S.G.’s and A.G.’s biological father. T.H. has a history of violence, including violence against female partners, and a lengthy criminal history. He has outstanding charges and a pattern of not following court orders. He did not participate in these proceedings.

[14] There were several findings made with respect to the Mother in the trial decision of Paulseth J. (in relation to S.G.), which were reiterated by the Judge as being relevant to the case before him, including, but not limited to:

a. The Mother physically abused her older children; b. She was unable to adequately parent S.G. or meet her needs. S.G.’s overall development would inevitably be severely compromised by the Mother’s care; c. The Mother struggled with parenting, even in supervised settings. She needed support and intervention on access visits, including how to redirect S.G.; d. She had little insight into the basic needs of children, such as routine, love and affection, stimulation and how to be safe and nurturing; e. She was unable to integrate parenting instruction into her parenting; f. She had difficulty talking to and engaging S.G. There were long periods of silence during access visits; g. She had little insight into the protection concerns and minimized them; h. The Mother’s children showed fear of her; i. The Mother was still drinking; j. She was unable to separate from the father; and k. The Mother’s needs were all-consuming, leading to blindness of her children’s needs.

[15] A.G. and his twin brother, Ab.G., were born prematurely, at twenty-six-weeks gestation, on […], 2018. CAST brought a protection application for both children on February 14, 2018.

[16] Each child weighed 1.5 lbs at birth. Ab.G. passed away on April 19, 2018. A.G. had several surgeries and procedures while in hospital. The Mother only visited the children a few times while they were in hospital. As of May 3, 2018, she had only visited A.G. twice.

[17] At the time, the Mother acknowledged that she drank once during her pregnancy and was still involved with T.H..

[18] A.G. was released from hospital on May 25, 2018 into foster care. He continued to suffer from serious medical ailments and had/has numerous follow-up medical appointments at the Hospital for Sick Children.

[19] The Mother started having supervised access visits to A.G. at CAST’s office in June 2018. She has been consistent with her weekly visits since July 2018. However, the Mother has not attended any of the child’s many medical appointments, even though she has been invited to attend. It was acknowledged by one of the social workers that culture likely plays a role in the Mother staying away from the hospital.

[20] A.G. continues to reside in a foster home with S.G. The foster mother is interested in adopting S.G. and A.G.

[21] CAST brought a motion for summary judgment and specifically for a finding that A.G. was a child in need of protection and placing the child in extended society care with no access to the parents. CAST did seek an order for sibling access.

[22] The CAST workers’ observations about the Mother’s access visits were consistent with those expressed by the workers for S.G. She struggled to engage in play and there were several periods of silence. She had difficulty following parenting suggestions at subsequent visits. She had difficulty following the child’s feeding schedule and mixing the formula. She was not responsive to the child’s cues. She did not always supervise the child or react when the child cried. She sometimes left the visits early. She had limited insight into the child’s medical needs.

[23] There were some positive aspects to the Mother’s visits, including that she is loving and affectionate with the child. She is happy to see the child. She was able to meet the child’s instrumental needs on visits and remembered to change the child’s diaper. She could burp the child and clean up after herself following visits. The child knows the Mother and enjoys his time with her. The child, however, will go to the foster mother to be comforted if the Mother and foster mother are in the same room.

[24] The Mother deposed that she has not consumed alcohol since October 2017 and she has no further contact with T.H. This is a change in circumstance from the case that was before Paulseth J. relating to S.G.

[25] The Mother consented to an extended society care order. On consent, statutory findings were made about the child pursuant to s. 90(2). The child was found to be in need of protection under ss. 74(2) (b)(i) and (ii).

[26] This left the issue of the Mother’s access with the child to be determined at the hearing. The one-day trial was heard on April 16, 2019. Both CAST and the Mother asked the court to make a final decision based on the written materials filed and oral evidence of the two society workers, who the Mother (through counsel) cross-examined that day. The Mother declined to give oral evidence and CAST declined to cross-examine the Mother.

Overview of Judgment

[27] The Judge held that it was in the best interest of the child to order supervised access between the mother and child.

[28] The Judge set out and carefully reviewed the changes to the access test under the new legislation for a child in extended society care, and specifically the best interest of the child test to be undertaken by the court. The new test includes a requirement to consider whether the relationship is beneficial and meaningful to the child as part of the best interest of the child assessment.

[29] The Judge rejected CAST’s position that the pre-CYFSA case law still applies when defining “beneficial and meaningful” relationship under the CYFSA. The Judge found that the benefits of the child’s relationship to the mother outweigh its detriments and that the child’s relationship is beneficial.

[30] The Judge found that CAST led no evidence that the mother’s access would impair the child’s future opportunities for adoption and that she is a very good candidate for an openness order if the child is placed for adoption.

[31] In considering what access order should be made, the Judge balanced the benefits of the child remaining in connection with the mother while having the security of permanent placement. Although the order provided access was at the discretion of CAST, the Judge ordered that access is to take place at least six times per year. CAST was ordered to provide pictures to the mother four times per year and the child and mother would be both access holders and access recipients.

Legislative Framework:

[32] In April 2018, the CYFSA was introduced to replace the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). Several changes were made, including changes with respect to determining access for children in extended society care.

[33] Section 104(1) of the CYFSA sets out the Court’s jurisdiction in relation to access:

The Court may, in the child’s best interests,

(a) when making an order under this Part; (b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[34] The test for access regarding children who are placed in extended society care is set out at s. 105 of the CYFSA as follows:

(4) 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 this Part with respect to the child is terminated.

(5) A court shall not make or vary an access order under s. 104 with respect to a child who is in extended society care […] unless the court is satisfied that the order or variation would be in the child’s best interests.

(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.

[35] Section 74(3) sets out the test for determining the best interests of a child:

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, Inuit 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.

THE GROUNDS FOR APPEAL:

A. Interpretation and application of the best interest test

[36] The Appellant submits that the Judge erred in his interpretation and application of the best interest test set out in s. 105 of the CYFSA. Specifically, the Appellant submits that the Judge erred in interpreting “beneficial and meaningful relationship” and for considering the prospect of an openness order.

a. Definition of “beneficial and meaningful relationship”

[37] CAST submits that the Judge erred in his understanding of the law, and specifically, his interpretation of a “beneficial and meaningful relationship”. The Appellant also submits that the Judge failed to consider the limited nature and extent of the child’s current relationship with the Mother and instead considered the benefits of a possible future relationship with the mother.

[38] For the reasons set out below, I find the Judge made an error in law in assigning a new definition to the words “beneficial” and “meaningful” under the CYFSA.

[39] CAST highlights the following paragraph of the Reasons:

[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 M.W., in particular the pre-CYFSA principles that: (a) the relationship with the parent must be significantly advantageous to the child; (b) future benefits to a child cannot be considered; and (c) the prospect of an openness order cannot be considered.

[40] Given the significant changes in the law relating to ordering access for a child in extended society care, it is worthwhile spending a few paragraphs highlighting the changes.

[41] There was a definite shift in the approach to access for children in extended society care under the CYFSA from its predecessor, the CFSA. Specifically, under the CFSA, the onus was on the person seeking access to establish that the relationship is “meaningful and beneficial” to the child. There was a presumption against access. Under the CYFSA, the burden is no longer on the person requesting access to demonstrate that the relationship is meaningful and beneficial to the child. Instead, the court must undertake a best interest analysis, which must include the consideration of whether the relationship “is meaning and beneficial to the child”: see s. 105(6) and, for example, The Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371 (“Niagara”), and Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (“Kawartha”), at paras. 46 and 47.

[42] The shift between the two Acts was succinctly summarized by Justice Kukurin in Children’s Aid Society of the District of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453 (“Manitoulin”), at para. 11, in that the CYFSA:

a. Replaced the two requirements for access in s. 51(21)(a) and (b) with one requirement, namely, the best interests test, b. Added to the best interests test applicable to access determinations in these circumstances (i.e. access to child in extended society care) the two requirements, but only as considerations under that test, not as pre-requisites, and c. Made the second one of these (i.e. that ordered access would not impair the child’s future opportunities for adoption) applicable only if the court considers it relevant.

[43] More importantly, the existence of a meaningful and beneficial relationship is no longer a prerequisite but must form part of the broader analysis of the best interests of the child: Manitoulin, at para. 11.

[44] In the Court of Appeal’s most recent decision on this topic, Kawartha (citation above), the Court confirms that the change to the test for access for a child in extended societal care “represents a significant shift in the approach to access”: at para. 48. The Court also refers to the shift in the burden of proof. As set out above, the burden is no longer on the person requesting access, and the Court must undertake a best interest analysis, assess whether the relationship is beneficial and meaningful, and consider impairment to future adoption opportunities: at para. 49. Specifically, “[t]his means that it is no longer the case that a parent who puts forward no evidence will not gain access”: at para. 49. There is no longer a presumption against access and the Court must undertake a best interest analysis instead: at para. 53.

[45] The Court in Kawartha concludes that it did not have enough evidence before it to determine the issue of access under the new legislation because there was no mention of the children’s best interests in the submissions and therefore no reference to the detailed list set out in s. 74(3) of the CYFSA.

[46] At para. 79 of the Reasons in the case before me, the Judge provides an analysis of the definition of a “meaningful and beneficial relationship”. There is plenty of case law under the CFSA defining the meaning of a “beneficial and meaningful relationship”. But does the change in the CYFSA change the meaning of the phrase “beneficial and meaningful relationship”, to the extent that the cases under the CFSA no longer apply? The Judge concludes that the old cases defining “meaningful and beneficial relationship” no longer apply. I disagree.

[47] This question was discussed by Kukurin J. in Manitoulin, where Kukurin J. concluded that the old jurisprudence would still apply:

Aside from statutory provisions, there is also the jurisprudence that has been built up around the issue of access to a child who is made a crown ward. While the terminology has changed so that a crown ward is now a child in extended society care, the semantic differences have not really changed the case law that has evolved to date. Of particular note is the case law that deal with

• The ‘beneficial and meaningful’ considerations of access
• The impairment of future opportunities for adoption
• The kinds of access orders that are possible for a court to make
• The more recent provisions for openness applications and openness orders: at para. 19.

[48] Justice Pazaratz arrives at the same conclusion in Niagara; specifically, that “[t]he abundant case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant in relation to s. 105(6) of the CYFSA”: at para. 87.

[49] The leading case that is most often cited on the meaning of these adjectives is a decision of Quinn J. under the CFSA, in which Quinn J. states:

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: Children’s Aid Society of Niagara v. M.J., [2004] O.J. No. 2872 (S.C.J.), at para. 45, cited by Manitoulin, at para. 25.

[50] There is no presumption that just because the access seeker is the parent of the child that the relationship is beneficial and meaningful.

[51] In Niagara (citation above), Pazaratz J. adopts almost an identical definition of “beneficial” and “meaningful” as Quinn J. above. Justice Pazaratz reviews several cases and summarizes the courts’ decisions: at para. 87. More than love or the display of love is required. More than biological connection is required. Even if there are some positive aspects to the relationship between the parent and child, that is not enough. There must be significant advantages to the child. The existing relationship between the person seeking access and the child must be considered and not a future, potential relationship. Finally, even if visits are generally enjoyable, 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.

[52] On the other hand, in considering the wording under the CYFSA, O’Dea J., in a 2018 case, specifically rejects the old definition of “meaningful” and “advantageous” as being “significantly advantageous” under the CFSA and instead infers a meaning of “positive” and “important” to the child. Justice O’Dea’s concern is that the original interpretation under the CFSA may overpower the 13 criteria in the best interests of the child test set out at s. 74(3): Family and Children’s Services of Guelph & Wellington, 2018 ONCJ 411, at para. 54.

[53] There is agreement in case law that the “meaningful and beneficial relationship” consideration is a mandatory consideration, but not one that is more important that the other factors in determining the best interests of the child. Does this necessarily mean that the definition has changed? The Judge disagreed with decisions of Justices Pazaratz and Kukurin and appears to adopt the decision of Justice O’Dea, in concluding the definition has changed.

[54] The Judge relies on Sager J.’s decision in Jewish Family and Child Service of Greater Toronto v. K.B, S.B. and R.G., 2018 ONCJ 650 (“JFCS”) (aff’d at 2019 ONSC 6214). Justice Sager reviews the pre and post-CYFSA case law on the interpretation of “beneficial and meaningful” and specifically, the different interpretations of the new test. Justice Sager highlights the differences between the CFSA and the CYFSA, including the fact that under the CFSA, the parent had to demonstrate that the relationship is meaningful and beneficial, while under the CYSFA, the court must consider as part of the best interest analysis whether the relationship between the person seeking access and the child is beneficial and meaningful. It is no longer a pre-requisite for ordering access. Justice Sager ultimately concludes therefore that the best interest analysis can involve numerous factors, and there cannot be a hard and fast rule on how much weight a court must give any one factor: JFCS, at paras. 140-144. In the case before me, there is no dispute on the application of the best interest test. Both the legislation and the case law are clear that a “meaningful and beneficial relationship” is only one consideration under the best interest test, but that does not change the definition of the wording “meaningful and beneficial”.

[55] The Judge relies on para. 143 of JFCS, which states:

[t]he 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…For this reason, the test was altered in a significant way to one of best interests.

[56] While Justice Sager, in JFCS, uses the word “definition”, from the context, Sager J. is referring to ensuring that all the factors are considered in determining the best interest of the child, and not just the relationship between the parent seeking access and the child. Further, at para. 137 of the decision, where Sager J. is specifically deciding whether post-CYFSA case law applies to the interpretation of beneficial and meaningful, Sager J. concludes that both Justices Kukurin and Pazaratz also applied the pre-CYSFA case law in determining whether the parent-child relationship was beneficial and meaningful for the children. Justice Sager follows these decisions.

[57] The Judge also relies on Kawartha to support his position. However, while the Court of Appeal talks about the change in focus, and that the test is no longer a pre-requisite, the Court does not state that the definition of “meaningful and beneficial” has changed, simply that “meaningful and beneficial” is not the sole focus, but needs to be considered within the context of the best interests of the child: at para. 53.

[58] I find that the Judge erred in law in his interpretation of “meaningful and beneficial” under the CYFSA.

b. Existing v. Future Relationship

[59] CAST also submits the Judge erred in law in considering the benefits of a future relationship between the parent and child, instead of considering the existing relationship.

[60] At para. 80 of his Reasons, the Judge states that when a court considers a child’s best interests it should consider all relevant factors “whether they be past, present or future considerations”. While this would be true for the factors set out at s. 74(3), it does not hold true when considering whether there is a beneficial or meaningful relationship between the child and the parent. At para. 90, the Judge states that “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…” (emphasis added). However, the language in the CYFSA has not changed. It still uses the present tense “is”: whether the relationship between the person and the child is beneficial and meaningful to the child. The legislation does not use a future tense.

[61] The purpose of an access order after a child is placed into extended care is different from the purpose of an access order before an extended society care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family: Manitoulin, at para. 24. The consideration is with respect to the existing relationship, not a future relationship. A court cannot speculate on whether a parent is going to be able to resolve their shortcomings and develop a more meaningful relationship. See for example, Children’s Aid Society of Toronto v. A.G., 2015 ONSC 6638 (“A.G.”), at para. 77.

[62] In answering the question as to why have an access order once a child has been placed in extended societal care, Kukurin J. states, at para. 24 of Manitoulin:

The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. That is not to say that if the access seeker is, for example, a parent of the child, there is an automatic presumption that access between the child and that parent is beneficial or meaningful. It must still be shown to be. The same applies for another other category of access seeker, and even the child itself if he or she is seeking access. [emphasis added]

[63] I find that the Judge erred in considering whether the relationship between the parent and child may become more meaningful in the future, instead of evaluating the existing relationship.

c. Openness Considerations

[64] CAST submits that in interpreting the best interests test, the Judge erred in considering future potential benefits of an access order and specifically the availability of an openness order at the time of adoption.

[65] Under the CFSA, the consideration of openness did not come into play until a child was being placed for adoption: see Haldimand (citation above), at para. 68. The Appellant submits that despite the significant changes in the CYFSA, it is notable that the new Act still does not refer to openness orders when considering the best interest of the child test. Under the CFSA, it was an error of law to import openness considerations when considering whether to grant an access order for a child being made a crown ward: see A.G. (citation above).

[66] This question was addressed under the CYFSA in Manitoulin, when Kukurin J. states at paras. 21-22:

[21] Openness arises only if the court makes an order for access. Openness does not even fall within Part V of the CYFSA …The possibility of a subsequent openness order being made is nowhere in the CYFSA suggested to be a factor that should impact on the making of an access order. This is still, however, a contentious issue for judges deciding access claims in the context of a crown ward/extended society care.

[22] The most significant decision on the impact of the CYFSA openness provision on the determination of an order for access to or by a child with respect to whom an extended care order has been made is an appellate decision of Harper J. […]: “The amendments to ss. 141, 143 and 145 create the concept of “openness”. However, s. 59 was not amended to require the court to consider the concept of openness when considering an access application under s.59.” This decision canvasses several other decisions that express views that the Bill 179 amendments to the CFSA in 2011 require the court to “consider the future benefits of an openness order in assessing if the parent’s relationship with a child is beneficial and meaningful” or that “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) to which he states “With the greatest of respect, I do no agree. Section 59 does not require the court to consider whether or not an openness order might impair adoption…any consideration of openness does not come into play until the child is going to be placed for adoption”. My decision in these Reasons does not consider the impact of an openness application.

[67] CAST refers to the following paragraphs of the Reasons:

[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…

[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 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.

[68] I see no error in the paragraphs above. The Judge simply stated that the Court need not disregard future benefits of access when considering the best interest of the child, because openness is still an option.

[69] When considering whether access would impair a child’s future opportunities for adoption, the Judge did state that “[t]he mother is a very good candidate for an openness order if the child is placed for adoption in the future”. Again, in this context, I see no error in law.

[70] This ground for appeal is dismissed.

B. Speculative inferences at trial

[71] The Appellant submits that the Judge erred in law and fact by making speculative inferences and findings of fact without a sufficient evidentiary basis.

[72] Specifically, CAST refers to two of the factors relied on by the Judge in determining the best interest of the child:

a. “An access order will help the child maintain his cultural and linguistic heritage”; and b. “Contact with the mother may assist in obtaining his medical and family history, if needed, to aid his development”.

[73] The Appellant submits that the Judge has no evidence on which to make these findings of fact.

[74] It is not the function of an appeal court to retry the case. If there is some evidence on which the trial judge could have reached his factual conclusions, the appeal court will not intervene: see Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2017] O.J. No. 6324 (“Waterloo”).

[75] In a 2012 case, Murray J. found that maintaining a connection and knowing your roots is significant in determining the best interest of the child: Catholic Children’s Aid Society v. M.M., [2012] O.J. No. 3240 (C.J.). However, if there is no evidence before the court with respect to the importance of maintaining the child’s heritage, can the court take judicial notice?

[76] That question was raised by the Court of Appeal in Waterloo. In that case, the Court found that a court can take judicial notice of systematic and background factors affecting Aboriginal people in Canadian society but it does not exempt the Court from considering the circumstances of each individual child in their entire context.

[77] Specifically, the Court in Waterloo refers to a decision by Harper J., in which he states:

I find that there is no evidentiary record in this case on the basis of which I can assess and balance the importance of the preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.

[T]here is no evidence relating to the uniqueness of the child’s particular Aboriginal culture, heritage or traditions for me to take into account: at para. 56, citing Catholic Children’s Aid Society of Hamilton v. G.H., 2017 ONSC 742, [2017] O.J. No. 1380 (S.C.J.), at paras. 42, 44.

[78] In Waterloo, there was no evidence that the parents had any connection to their culture; that the child was ever exposed to the Indigenous culture; or that anyone from the Indigenous community had ever been involved with the parents or the child: at para. 57. In this case, therefore, there must be evidence in relation to the child if a determination is made under s. 74(3) (c).

[79] But the CYFSA goes further than the CFSA. A.G.’s culture, linguistic heritage, race, ancestry, colour and ethnic origin are enumerated and mandatory considerations in the best interest test under s. 74(3) (c)(iii) and (iv), if relevant. Specifically, the court shall consider any other circumstance of the case that the person considers relevant, including “the child’s race, ancestry, place of origin, colour, ethnic origin….the child’s cultural and linguistic heritage”.

[80] However, as set out above, there must still be a factual foundation on which the Judge could make the determination that it was in the child’s best interest to have access to his mother because of culture or heritage.

[81] On reviewing the record, I find that there was some evidence of the Mother’s culture before the Judge, set out in the affidavits of the workers at CAST. Specifically:

a. The Mother’s family continued to live in Ethiopia; b. The Mother had been in a concentration camp in Ethiopia before coming to Canada; c. The Mother speaks Oromo; d. The Mother attends an Ethiopian Church and they form part of her support system; e. There were cultural reasons that factored into the Mother’s lack of involvement while A.G. was in hospital; f. When asked if she had any ideas on how the Society could support A.G.’s cultural identity, the Mother responded that whenever A.G. goes to school, “he can learn about the different countries and understand where she comes from”. The Mother has a grade four education and cannot read or write in her native language. At the end of her discussion with Ms. Hatton, the Mother still thought the child would be placed with his paternal grandmother and she would be able to visit with him; and g. During one of her access visits, the Mother told the child about his extended family.

[82] I am not prepared to interfere with the trial judge’s finding of fact on this issue.

[83] With respect to the second finding, that contact with the Mother may assist in obtaining his medical and family history, I find there was no evidence before the Judge. Specifically, A.G. has been in CAST’s care from birth. The child has no medical history prior to his involvement with CAST.

[84] There is no dispute that A.G. had serious health concerns as a result of his premature birth. However, any future health concerns, including possible hereditary concerns, are entirely speculative. There was no evidence at trial in this regard. Otherwise every parent with a child in extended society care could be granted access on the basis that sometime in the future a family’s medical history may become important, without any current evidence to support same. This cannot be the intention of the Act. There was no evidence presented at trial in this regard and therefore this equates to an error of law.

C. Mother and child as both access holder and access recipients

[85] The Appellant submits that the Judge made a palpable and overriding error in finding that the Mother and child should be both access holders and access recipients, and there was insufficient evidence to support such findings.

[86] Section 105(7) of the CYFSA states that where a court makes an access order with respect to a child who is in extended society care, the court shall specify:

a. Every person who has been granted a right of access; and b. Every person with respect to whom access has been granted.

[87] This provision/terminology did not exist under the CFSA. The importance of determining who is an access holder and who is an access recipient 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.

[88] While a plain reading of s. 105(7) appears to suggest that a parent being given access to a child is the access holder, the language of the CYFSA, read as a whole, permits the parent and/or child to be both access holder and access recipient. This initial authority to make an order for access related to a child in extended society care is s. 104(1). The section states that a court may “make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person” (emphasis added). The access order is to be made in the best interest of the child.

[89] Prior cases have held that it is the court’s preference to make parents access holders so that they can have a say in the contact they will have with the child post-adoption and do not have to rely on the OCL or society: see, e.g. Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, at para. 361. However, in this case, given the Mother’s limitations, the Judge finds that both the Mother and the child will be access holders and access recipients, because the Court

is not confident that the mother will have the ability to bring an openness application in a timely manner if served with a notice of intention to place the child for adoption, given some of her cognitive, educational and language limitations. This will give the Office of the Children’s Lawyer the opportunity to bring an openness application on behalf of the child if it determines that such an application is in the child’s best interests at that time.

[90] I find no error in the Judge’s findings.

D. Access following an order of extended society care

[91] The Appellant submits that the Judge made a palpable and overriding error in finding that access following an order of extended society care would be in the child’s best interest.

[92] In light of my findings above, I am not going to address this ground for appeal. The matter is going to be sent back for a new hearing to determine whether access following an order of extended society care would be in the child’s best interest.

Conclusion

[93] The appeal is allowed in part and the judgment of the lower court is set aside. The matter shall be returned to the Ontario Court of Justice for a new trial.

Shore J.

Released: January 10, 2020

COURT FILE NO.: FS-19-10749 DATE: 20200110

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: The Children’s Aid Society of Toronto Appellant – and – J.G. Respondent

REASONS FOR JUDGMENT Shore J.

Released: January 10, 2020