“The CYFSA [Child, Youth and Family Services Act, 2017] changed the considerations for access. A comparison to the CFSA [Child and Family Services Act, 1990] demonstrates this.
The test for access to a Crown ward under the old Act was strict:
59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption. [Emphasis added.]
The onus was on the person seeking access (usually the parent) to establish that the relationship was meaningful and beneficial. There was a presumption against access. And opportunities for adoption were prioritized over other considerations.
This changed significantly when the new Act was introduced. The new Act states that the court shall not make the access order unless it is satisfied that it is in the best interests of the child. Section 104(5) provides:
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 theorder 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. [Emphasis added].
This change is not just semantics. It represents 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. 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…”
Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 44-49