“The motion judge properly held that the CYFSA [Child and Youth Family Services Act, S.O. 2017, c. 14, Sched. 1] provides that existing access orders are terminated when a child is placed in extended society care unless the party seeking access establishes that ongoing contact is in the child’s best interests. This complies with the statutory requirements set out in CYFSA subsections 105(5) and (6), which provide:
When court may order access to child in extended society care
(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),
(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.
…
The motion judge specifically considered the effect of the transition from the CFSA[Child and Family Service Act, R.S.O. 1990, c C.11] to the CYFSA. Under the CFSA, once access was terminated, the burden was upon the person seeking access to rebut the presumption against access. The motion judge explicitly considered this in explaining that while the predecessor legislation had been rigid in requiring that parents demonstrate a meaningful and beneficial relationship, the CYFSA takes a more flexible approach in subsuming the meaningful and beneficial factor within the greater context of the best interests analysis. In this way, the new access test recognizes that a case-by-case weighing of all relevant factors against the needs of the child is more appropriate than confining the court to the one-dimensional definition of “meaningful and beneficial” for determining whether access can occur.
The motion judge’s approach accords with the approach set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 49, decided after the motion judge’s decision:
The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, 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. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.