“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 This changed in 2018 when the CFSA was repealed and replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).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 a “beneficial and meaningful” relationship was expanded to incorporate a broadly-based best- interests analysis.
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.
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.
For the reasons that follow, I would allow the appeal and restore the trial judge’s order.”
Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (CanLII) at 1-4