“Where a child has been placed in extended society care, pursuant to section 115(4) of the Act, a parent of the child may apply for a status review. However, this application is not as of right. Section 115(5) of the Act requires leave of the court if immediately prior to the application, the child has received continuous care for at least two years from the same foster parent or from the same person under a custody order. By the time this matter was argued before me in January 2022, the child had received continuous care from the current foster parents for approximately 38 months.
The CYFSA does not outline the specific factors a court must consider in exercising its discretion to grant leave in these circumstances. For this criteria, we must turn to the common law: C. v. Children’s Aid Society of Ottawa Carleton, 2000 CanLII 22539 (ON SC), [2000] O.J. No. 2063 (S.C.J.) at paras. 32-34.
A description of the test for leave to bring a status review application in these circumstances was summarized by Justice C. Lafreniere in the Superior Court decision of K.C. v. Children’s Aid Society of Hamilton, 2017 ONSC 565. This 5-part test was considered as recent as May 2021 by Justice S.S. Bondy in Family and Children’s Services of Wellington County v. C.R., 2021 ONCJ 346 at para. 35:
“5 The parties agree the test for leave is set out in the decision of Justice Bean in Catholic Children’s Aid of Metro Toronto v. B.A.F. [1988] O.J. No. 295 (“B.A.F.”). The five part test is as follows:
A. The judge must be satisfied that the status review application for which leave is sought is being brought bona fide, and not for some ulterior motive for attempting to review the child’s status and upset the child’s present living situation.
B. Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole order itself.
C. There has to be some unusual circumstances to justify the review in spite of the child’s permanent status as a Crown ward and despite living continuously with the same foster parents for two years.
D. The application must establish and the judge must be satisfied that a status review application at this time, after the lapse of two years, would likely accomplish the purposes of the Act as set forth in section 1.
E. The applicant must establish a prima facie case, that if leave were granted and the status review application proceeded to hearing, the result of the hearing would probably be the result sought by the applicant.”
6 In Durham Children’s Aid Society v. J.S. 2009 CanLII 80106 (ON SC), [2009] O.J. No. 5901 at paragraph 97, Justice Timms considered the five criteria established by Justice Bean and stated:
…sufficient to say that any party making an application for a review of a Crown wardship order, which does not lie of right, must satisfy the court, on a balance of probabilities, that such a review would meet the “paramount” and “other purposes” definitions found in section 1 of the CFSA. Best interests are included therein.
7 The paramount purpose of the CFSA is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.”
All five parts of the test must be met by the party seeking leave to bring a status review application: K.C. v. Children’s Aid Society of Hamilton, at para. 9; Children’s Aid Society of Toronto v. M.S., [2016] O.J. No. 2701 (C.A.) at para. 19.”