Jun 29, 2020

COURT OF APPEAL SUMMARIES (June 22 – 26, 2020)

Children's Aid Society of Toronto v. J.G., 2020 ONCA 415 (CanLII)

[Doherty, Hourigan and Benotto JJ.A.]

COUNSEL:

Andrew Burgess and Jessica Gagne, for the appellant

Ian Ross and Elizabeth McCarty, for the Intervener the Office of the Children’s Lawyer

Simon Fisch and Karen Freed, for the respondent Children’s Aid Society

Keywords: Family Law, Crown Wardship, Access, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 59, Child and Family Services Act, R.S.O. 1990, c. C.11, ss 105(5) and (6), Family Law Rules, O. Reg. 114/99, Rule 16(6.2), Kawartha-Haliburton Children’s Aid Society v. M.W. , 2019 ONCA 316, L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, Children’s Aid Society of the Niagara Region v. M.J., 2004 CanLII 2667 (Sup. Ct.)

FACTS:

The appellant is the mother of A.G., who is two years old. The child is the fifth child born to the appellant. The other four children are in care. The mother is not able to care for the child. In fact, she did not dispute the finding that the child be in the extended care of the respondent, the Children’s Aid Society of Toronto (“the Society”). She only seeks continued access. The visits had been once-a-week on a fully supervised basis at the Society offices. The father of the child took no part in the proceedings.

Following a mini-trial on the Society’s motion for protection, the Ontario Court trial judge granted the mother access. He rejected the old strict “beneficial and meaningful” relationship test under the Child and Family Services Act , R.S.O. 1990, c. C.11 (“CFSA”), and applied the new broadly-based best-interests analysis under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).

The Superior Court allowed the Society’s appeal and set aside the access order, relying on the old test under the CFSA. The mother appealed.

ISSUES:

1. Has the test for access under the CYFSA changed the meaning of a “beneficial and meaningful” relationship?

2. Can the benefits of a future relationship be considered?

3. Did the trial judge err by referring to the child’s medical information and family history?

HOLDING:

Appeal allowed.

REASONING:

1. Yes. The new access test is no longer a “beneficial and meaningful” test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child’s best interests it should consider all relevant factors, including whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. Subsections 105(5) and (6) of the CYFSA changed the criteria for access to children in extended care by removing the presumption against access found in s. 59 of the CFSA and making the child’s “best interests” predominant in determining access.

The change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include:

  • The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities.
  • When the court undertakes a best interests analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant
  • There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access
  • While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the CYFSA, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests
  • Children are “individuals with rights to be respected and voices to be heard” and their wishes are to be considered and given due respect when any decision is made that affects their lives
  • The aim of the CYFSA is to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child
  • The protections and unique considerations for all First Nations, Inuit and Métis children were expanded
  • The age of “protection” was expanded to include 16 and 17 year olds
  • Siblings were specifically referenced in the non-exhaustive list of persons who may seek access. This inclusion was made to specifically “promote the consideration of [sibling] access application[s], and as part of efforts to promote the rights and voice of children throughout the Act”

2. Yes. There was simply nothing in the plain wording of the CYFSA to suggest that access should be decided without reference to the future.

3. No. As indicated, the best interests analysis properly includes consideration of the future. Furthermore, this factor was only one of ten listed by the trial judge in his consideration of the benefits of access. Finally, this factor was not speculative: the child had significant medical issues as a result of premature birth. There was no error in the trial judge’s common-sense conclusion that a child with significant medical issues could benefit from some form of continuing contact with his biological mother.

The Court concluded with a comments on the burden of proof and onus. It reiterated that there is no longer a presumption against access. Regarding onus, the Court commented that a child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.