“In keeping with the paramount purpose of the CYFSA, the additional purposes of the legislation indicate, among other things, that courts should consider what the least disruptive course of action would be as well as whether it is possible to provide services within the family or community: s. 1(2).
The Ontario legislature enacted the CYFSA in 2017 and part of this legislation responds to the Truth and Reconciliation Commission of Canada’s (“TRC”) report. This is highlighted in the CYFSA’s preamble, which states:
In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.
With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:
The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.
Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
Most of the changes brought about by the CYFSA highlight the results of the TRC report and emphasize the importance of keeping children in the homes of their families and communities.
Section 74 of the CYFSA deals with the best interests of child. It states as follows:
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
According to s. 101(1) of the CYFSA, where a court makes a finding that the child is in need of protection, it must be satisfied that the intervention through a court Order is necessary to protect the child in the future. The court can make four Orders: 1) a supervision Order; 2) an interim society care Order; 3) an extended society care Order; or 4) consecutive Orders of interim society care and supervision.
According to s. 102(1) of the CYFSA, a court can make an Order under this section instead of s. 101(1) if it is in the child’s best interests to grant “custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons”.
Section 104 of the CYFSA sets out the court’s powers regarding access. It reads as follows:
104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(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.
Section 105(4) of the CYFSA stipulates that where a court makes an Order that the child be placed in extended society care, any Order for access is terminated.
Section 105(5) of the CYFSA states that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court cannot order access to the child unless it is satisfied that the Order would be in the best interests of the child.
Section 105(6) stipulates additional factors to be considered in determining whether an access Order would be in the best interests of the child in extended society care. These factors are whether the relationship is beneficial and meaningful to the child and if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
Lastly, s. 105(7) of the CYFSA notes that the court must specify access holders and access recipients when a child is in extended society care.
In Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2018] 4 C.N.L.R. 31, leave to appeal refused [2018] S.C.C.A. No. 51, the Court of Appeal for Ontario discussed the need for a factual foundation with regards to a child’s First Nation’s heritage: at para. 56. At para. 58, the Court of Appeal for Ontario stated as follows:
I recognize that Indigenous membership has expanded to include self-identification. However, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.”
The Children’s Aid Society of Ottawa v. S.D. and J.L., 2020 ONSC 7662 (CanLII) at 20-31