“This court proceeding was commenced by the Society on February 1, 2018 under the Child and Family Services Act, R.S.O. 1990, c. c.11 (“CFSA”). On April 30, 2018, the CFSA was replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). A transitional regulation, O.Reg. 157/18, required that all cases not concluded at the date the CYFSA came into force would be continued as a proceeding commenced under the CYFSA rather than the CFSA. (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.)
Accordingly, the issue of access must be determined pursuant to the CYFSA. This is significant as the CYFSA provides for a new expanded test for access to children in extended society care. Justice Benotto of the Ontario Court of Appeal in the Kawartha case stated in paragraph 31:
Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community.”
Highland Shores Children’s Aid Society v. J.G. and R.D.F., 2019 ONSC 5476 (CanLII) at 120-121