“In the motion for summary judgment, the position of the CCAST was that the children should have a relationship with their parents and the parents should have access, but the Society sought to retain the authority to impose conditions including supervision. The position of the Appellant was that the children wanted to see their parents more frequently than the status quo of two hours per week but she did not propose a timetable for increasing the access. The position of the OCL was that the children wanted to see their parents and the children said that the duration of each visit was too short. The issue before the motion judge was not whether there would be access but the circumstances under which it occurred including duration, frequency, and supervision.
In Kawartha-Haliburton, 2019 ONCA 316, the issue on the summary judgment motion was whether access should occur. In that case, after articulating the framework the court must apply given the changes brought about by the CYFSA, the Court of Appeal set aside the decision but concluded that the record was insufficient to permit it to apply the correct test, and referred the matter back to the Superior Court. In L.M., 2019 ONCA 841, the Court of Appeal concluded that the record was a sufficient basis on which it set aside the no access order and ordered that the Appellant have access. The Court had granted leave to the OCL to filed fresh evidence in the form of an affidavit addressing the issue of access in the context of adoption. The Court noted that that evidence suggests that some form of access would be in the children’s best interests, that it was the preference of one of the children, and that all the children appeared to have strong emotional ties to the Appellant. Furthermore, the Peel CAS conceded that an access order would be appropriate as being in the children’s best interest. The Court remanded the issues of the nature and extent of access to the OCJ for determination.
Pursuant to s. 105(4) of the CYFSA, an existing access order terminates when an order is made for extended society care. Section 105(5) provides that 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. As a result of s. 105(6) in considering whether an order or variation would be in the child’s best interests under subsection (5), the court must consider whether the relationship between the person and the child is beneficial and meaningful to the child.
As the Court of Appeal emphasized in Kawartha-Haliburton at paras. 48-49, the change reflected in s. 104(5) and (6) represented
a significant shift in the approach to access for children in extended care.
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.”
Catholic Children’s Aid Society of Toronto v. O.P., 2020 ONSC 3011 (CanLII) at 72-75