“The test for access to a child in extended society care has changed under the new CYFSA (Child Youth and Family Services Act, 2017) to be focused on a determination of what is in the child’s best interest. The case law since the CYFSA was enacted indicates that following regarding the new test under s. 105(5) and (6):
- While the revised legislation gives the court more flexibility and discretion in determining the issue of access to a child in extended society care, it is important to be mindful of the following:
(a) There is still a presumption against access to a child in extended society care.
(b) It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way.
(c) The court still has discretion to consider whether access will impair future adoption opportunities.
(d) While the overall legal test is less rigidly defined, nonetheless the onus remains entirely on the person seeking access to a child in extended society care to establish on a balance of probabilities that access would be in the best interests of that particular child: Children’s Aid Society of Niagara Region v. B.P. [2018] O.J. No. 3792 (Ont. S.C.).
- There is no longer a “formal” requirement that both considerations of beneficial and meaningful, and impairing adoption be demonstrated to satisfy the court that an access order should be made. The enactment of the CYFSA has arguably lessened the onus on the access applicant. It may not have completely done away with the reverse onus that was implicit in s. 59(2.1) of the CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H. [2018] O.J. No. 3675 (Ont. C.J.).
- The person seeking access must prove that access is beneficial to the child on a balance of probabilities. While this is now a consideration under the Act,it is an important one, perhaps more important than any other. The evidence must show that the relationship is beneficial and meaningful to the child now and not in the future: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
- The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. It is a child focused inquiry. It matters only a little, if at all, what the relationship may be for the access seeker: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
- The case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant under s. 105(6) of the CYFSA: Children’s Aid Society of Niagara Region v. B.P., supra.”