



WARNING

This is a case under the
Child, Youth and Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child,
    Youth and Services Act, 2017
, which
deals with the consequences of
    failure to comply, read as follows:

87
(8)
Prohibition re
    identifying child
 No person shall publish or make public information
    that has the effect of identifying a child who is a witness at or a participant
    in a hearing or the subject of a proceeding, or the childs parent or foster
    parent or a member of the childs family.

(9)
Prohibition re
    identifying person charged
 The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto
    v. J.G., 2020 ONCA 415

DATE: 20200625

DOCKET: C67967

Doherty, Hourigan and Benotto JJ.A.

BETWEEN

The
    Children's Aid Society of Toronto

Applicant
(Respondent on Appeal)

and

J.G.

Respondent Mother
(Appellant)

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

Heard: June 12, 2020 by video conference

On appeal from the judgment of Justice Sharon Shore of the Superior
    Court of Justice, dated January 10, 2020, with reasons reported at 2020 ONSC
    1135.

Benotto
    J.A.:

[1]

Historically, it has been difficult for a biological parent to obtain the
    right to access a child placed in the extended care of a childrens aid society
    (previously called Crown Wardship). There was a legislated presumption
    against access and there was a strict test to be met. The legislation at the
    time, the
Child and Family Services Act,
R.S.O. 1990, c. C.11 (
CFSA
),
    required that an applicant establish that the relationship is beneficial and
    meaningful to the child and that the access would not impair the childs
    opportunities for adoption. This changed in 2018 when the CFSA was repealed and
    replaced with the
Child, Youth and Family Services Act
, 2017, S.O.
    2017, c. 14, Sched. 1 (
CYFSA
). The new legislation reflected a
    change in the approach to many aspects of child protection law, relating to
    children in care, including access. The former strict interpretation of a
    beneficial and meaningful relationship was expanded to incorporate a
    broadly-based best- interests analysis.

[2]

This court has referred to the significance of the change on more than
    one occasion. Yet, some lower courts continue to apply jurisprudence based on
    the old restrictive test.

[3]

Here, the trial judge applied the new approach to the determination of
    access for a mother and ordered access at the discretion of the childrens aid society.
    The appeal judge applied the old restrictive test, allowed the appeal and
    overturned the decision.

[4]

For the reasons that follow, I would allow the appeal and restore the
    trial judges order.

FACTS

[5]

The underlying facts are not disputed.

[6]

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
    facts articulated in the decisions below with respect to A.G. and the four
    siblings clearly establish that 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 Childrens 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.

DECISIONS BELOW

The Ontario Court

[7]

The matter came before Sherr J. of the Ontario Court as a summary
    judgment motion for protection by the Society. He conducted a mini-trial in
    accordance with r. 16(6.2) of the
Family Law Rules
, O. Reg. 114/99. As
    part of that process he requested more evidence and heard oral evidence from
    the mother. Ultimately the mother consented to an extended society care order
    and the only issue before the court was her access to the child. Both the
    Society and the mother asked the court to make the determination on the basis
    of the evidence presented.

[8]

The trial judge set out in detail the positive and the negative aspects
    of the mothers visits with the child. He also considered the pros and cons of
    the mothers continued relationship with the child. One of the benefits of an
    ongoing relationship with the child included the fact that access to the
    childs medical information and family history would be more readily available.

[9]

The Society urged the court to follow the line of cases dating back to
    the
CFSA
that narrowly interpreted the words beneficial and
    meaningful. The trial judge rejected that approach and determined, based on
    the wording of the
CYFSA
and this courts decisions interpreting it,
    that a more expansive inquiry was required.

[10]

On
    the basis of this more expansive inquiry, he concluded that the benefits of the
    mothers relationship with the child outweigh any detriments and that the
    relationship would be beneficial and meaningful for the child. He found that it
    was now, and would be in the future, in the childs best interests for the
    biological mother to have access to the child at the discretion of the Society.

The Superior Court

[11]

The
    Society appealed the order allowing the mother access to the child at its
    discretion.

[12]

The
    appeal judge concluded that the trial judge erred in assigning a new definition
    to the words beneficial and meaningful under the
CYFSA
. She reviewed
    the case law on the interpretation of the meaning of beneficial and
    meaningful and the different interpretations. She concluded that the more
    restrictive approach still applied. She also found that the trial judge erred
    by considering the potential for a future relationship because the court is
    called upon to consider whether the relationship is beneficial and
    meaningful, not whether it will become so in the future. Finally, she found
    that it was an error of law for the trial judge to refer to the future need for
    medical information, as this was entirely speculative.

ISSUES ON THIS APPEAL

[13]

There
    are three related issues on this appeal:

(i)

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

(ii)

Can the benefits
of a
    future relationship be considered? and

(iii)

Did the trial judge err by referring to the
    childs medical information and family history
?

BACKGROUND

[14]

I
    will set out the legislative history and the case law. I will then discuss the
    significance of the changes in the
CYFSA
with respect to the
    determination of access.

(1)

LEGISLATIVE HISTORY

[15]

Since
    2004, the statute dealing with children in need of protection was the
CFSA
.
    Access to Crown wards was governed by s. 59, which stated:

Access:
    Crown ward

(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 childs future opportunities for adoption.

[16]

The
    legislation also prevented a child from being adopted if there was an
    outstanding access order. When a child was about to be placed for adoption, the
    court was prevented from granting an access order except in extraordinary
    circumstances. Since courts had to choose between an access order or permanency
    for a child, the common law interpretation of the test for access to a Crown
    ward under the former
CFSA
was extremely, and intentionally,
    restrictive.

[17]

In
    2011, the Legislature amended the
CFSA
to allow a child to be placed
    for adoption even when there was an outstanding access order. The amendments
    established a process for a Society to administratively terminate an access
    order by serving a notice of intention to place a child for adoption on persons
    named in the access order. The amendments broadened the ability for children to
    continue to have some form of contact with people who are important to them
    through openness after adoption. However, the test for access to a Crown ward
    did not change and courts continued to apply the same strict approach.

[18]

On
    April 30, 2018, the
CFSA
was replaced with the new
CYFSA
. The
    new legislation aimed to reduce the stigma of children in care, address Indigenous
    issues and import a broad best interests analysis into the determination of
    access.

[19]

There
    were many changes. Children who were previously described as Crown wards are
    now referred to as in extended Society care.

[20]

The
    two-part test for access in s. 59 was replaced with a holistic consideration of
    the childs best interests. This is set out in ss. 105(5) and (6):

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
    the order or variation would be in the childs 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 childs 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
    childs future opportunities for adoption. [Emphasis added]

[21]

Pursuant
    to s. 74(3), best interests of a child is a defined term that encompasses a
    very broad range of considerations:

Best
    interests of child

(3) Where
    a person is directed in this Part to make an order or determination in the best
    interests of a child, the person shall,

(a) consider
    the childs views and wishes, given due weight in accordance with the childs
    age and maturity, unless they cannot be ascertained;

(b) in
    the case of a First Nations, Inuk or Métis child, consider the importance, in
    recognition of the uniqueness of First Nations, Inuit and Métis cultures,
    heritages and traditions, of preserving the childs cultural identity and
    connection to community, in addition to the considerations under clauses (a)
    and (c); and

(c) consider
    any other circumstance of the case that the person considers relevant,
    including,

(i)
the childs physical, mental and emotional needs, and the
    appropriate care or treatment to meet those needs,

(ii)
the childs physical, mental and emotional level of development,

(iii)
the childs race, ancestry, place
    of origin, colour, ethnic origin, citizenship, family diversity, disability,
    creed, sex, sexual orientation, gender identity and gender expression,

(iv)
the childs cultural and linguistic
    heritage,

(v)
the importance for the childs
    development of a positive relationship with a parent and a secure place as a
    member of a family,

(vi)
the childs relationships and
    emotional ties to a parent, sibling, relative, other member of the childs
    extended family or member of the childs community,

(vii)
the importance of continuity in the
    childs care and the possible effect on the child of disruption of that
    continuity,

(viii)
the merits of a plan for the
    childs care proposed by a society, including a proposal that the child be
    placed for adoption or adopted, compared with the merits of the child remaining
    with or returning to a parent,

(ix)
the effects on the child of delay
    in the disposition of the case,

(x)
the risk that the child may suffer
    harm through being removed from, kept away from, returned to or allowed to
    remain in the care of a parent, and

(xi)
the degree of risk, if any, that
    justified the finding that the child is in need of protection.

(2)

JUDICIAL INTERPRETATIONS

[22]

After
    the coming-into-force of the
CYFSA
, two lines of cases developed. Both
    professed to follow the new law. One line of cases followed the old test. The
    other line of cases took an expansive approach.

[23]

I
    turn to the case law under the
CFSA
and then refer to the two
    conflicting approaches that followed the implementation of the
CYFSA
.

Case law under the
CFSA

[24]

The
    most often cited case propounding the restrictive approach is
Childrens
    Aid Society of the Niagara Region v. M.J.,
2004 CanLII 2667 (Sup. Ct.) at
    paras. 45 and 46. In it, Quinn J. looked to the dictionary definition of the
    words beneficial and meaningful under the CFSA:

What is a beneficial and meaningful
    relationship in s. 59(2)(a)? Using standard dictionary sources, a beneficial
    relationship is one that is advantageous. A meaningful relationship is one
    that is significant. Consequently, even if there are some positive aspects to
    the relationship between parent and child, that is not enough  it must be
    significantly advantageous to the child.

He also addressed the pertinence of the future
    relationship:

I read s. 59(2)(a) as
    speaking of an
existing
relationship between the person seeking access and the child, and not a
future
relationship. This is important,
    for it precludes the court from considering whether a parent might cure his or
    her parental shortcomings so as to create, in time, a relationship that is
    beneficial and meaningful to the child. This accords with common sense, for the
    child is not expected to wait and suffer while his or her mother or father
    learns how to be a responsible parent.

[25]

As
    time went by, judges routinely used the phrase significantly advantageous
    when interpreting the legislated beneficial and meaningful test. This was the
    genesis of the first line of cases.

Case law under the
CYFSA

[26]

After
    the new legislation came into force, the test set out by Quinn J. continued to
    be applied in some cases, e.g.,
Childrens Aid Society of Niagara

Region v. B.P. and B.W
.,
    2018 ONSC 4371 and
Childrens Aid Society of the
    Districts of Sudbury and

Manitoulin v. C.H
., 2018 ONCJ 453.

[27]

In
Niagara
, Pazaratz J. adopted the significantly advantageous term and
    also concluded that only the existing relationship be considered, not the
    future one. He also found that there remains a presumption against access
    under the
CYFSA
.

[28]

In
Manitoulin
, Kukurin J. acknowledged that the
CYFSA
altered
    the test for access to a child in extended care but, for the terms beneficial
    and meaningful and impair adoption, he concluded at para 13:

it might be
    argued that these have come down a notch in terms of importance, that they
    represent just two more factors among several that must be taken into account
    under the best interests analysis under the
CYFSA
, that they are no
    longer statutorily included as prerequisites for the access applicant; they are
    simply judicial considerations. I do not believe that this is really the end
    result of the legislative changes.

[29]

Other
    courts have taken a different approach, reflecting a flexible interpretation of
    the test. The approach is summarized by Sager J. in
Jewish Family and Child
    Service of Greater Toronto v. K.B.
, 2018 ONCJ 650, at paras. 141-43, affd
Jewish Family and Child Service of Greater Toronto v.
    E.K.B.
, 2019

ONSC 6214
:

The introduction of the best interests test in
    the
CYFSA
brings a
    less rigid and more flexible approach to deciding whether to order access to a
    child placed in the extended care of the society, as a court is now permitted
    to give consideration to any factor it considers relevant, one can assume, on
    the well accepted principle in cases involving children that one size does not
    fit all.

As the best interest analysis involves a
    consideration of what could be numerous factors, there cannot be a hard and
    fast rule as to how much weight a court
must
give any one factor including
    whether the relationship between the party seeking access and the child is
    beneficial and meaningful to the child. That must be determined on a case by
    case basis, by weighing all the relevant factors against the particular needs
    of the child before the court. This is a significant departure from the rigid
    test in the predecessor legislation.

For some children
    who are the subject of an order of extended society care, a relationship with a
    parent may be in their best interests for a myriad of reasons. Some of those
    reasons would not have been sufficient to demonstrate a beneficial and
    meaningful relationship under the predecessor legislation to the
CYFSA
. The court ought not be confined
    to a one-dimensional definition of beneficial and meaningful under the
CYFSA
, as to do so would be to
    potentially ignore the variety of needs children have as a result of being
    removed from their parents' care, both at the date of the order and in the
    future. For this reason, the test was altered in a significant way to one of
    best interests. [Emphasis in original.]

[30]

This
    test has been endorsed and followed in numerous cases:
Catholic Childrens
    Aid Society of Toronto v. R.H.
, 2018 ONCJ 854;
Childrens Aid Society
    of the Regional Municipality of Waterloo v. J.D
., 2018 ONCJ 963;
L.M.
    v. Childrens Aid Society of the Region of Peel
, 2019 ONSC 1566;
Family and Childrens Services of Guelph & Wellington
    County v. A.I.S
.
,

2018 ONCJ

410
;
Catholic Childrens Aid Society
    of Toronto v. A.P.
, 2019 ONCJ 631
;

Childrens Aid Society of

Toronto v. R.S.
, 2019 ONCJ 866
;
Family & Childrens Services
    v. B.S.
, 2019 ONSC 6577
;

Childrens Aid Society of Halton Region v. S.O.
, 2019 ONCJ 121
;
Childrens Aid Society of Peel

v. C.D.
, 2018 ONCJ 917
;

Jewish Family and Child Service of Greater Toronto v.
    K.B.
,

2018 ONCJ

650, at para. 144

;
Highland Shores Childrens Aid
    Society v. J.G. and R.D.F.
,

2019 ONSC 5476, at paras. 121
-
23
;
Childrens

Aid Society of Toronto v. Y.M.
, 2019 ONCJ 489, at paras. 305
-
308;

Catholic

Childrens Aid Society of Toronto
    v.

R.H.
, 2018 ONCJ 854, at paras. 99
-
101
;

Family and Children's Services of Guelph & Wellington
    County v. T.S
.
, 2018

ONCJ 411, at para. 54
;
and
Childrens Aid Society of the
    Regional Municipality of Waterloo v. J.D.
, 2018 ONCJ 963
,

at para. 74
.


DISCUSSION

[31]

The
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament:
Bell ExpressVu Limited Partnership v.
    Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A.
    Driedger,
Construction of Statutes
,
2nd ed. (Toronto: Butterworths, 1983), at p.  87.

[32]

I
    therefore begin with a broad consideration of the scheme of the
CYFSA
and its object.

[33]

A
    requirement of the
CFSA
was that the Minister publicly review the Act,
    or specified provisions of it, every five years. These reviews were to be conducted
    by the Ministry of Children and Youth Services to enable the government to
    better understand how its laws, programs and policies are experienced on the
    ground. The information gathered as part of these reviews provided an
    opportunity for learning and change, and also supported the Ministry and its
    partners to provide high-quality services for children, youth and families in
    Ontario. In September 2014, the third legislative review of the
CFSA
was
    announced.

[34]

The
    2015 review
[1]
stressed the need for change for children in protection proceedings. It
    recommended a change in the language to reflect the realities of families and
    also recommended a change to the test for access to Crown wards. The
CYFSA
achieved both these objectives.

[35]

As
    this court said in
Kawartha
-
Haliburton Childrens Aid Society
    v. M.W.
,

2019 ONCA 316, 432 D.L.R. (4th)
    497,
and in
L.M. v. Peel Childrens Aid
    Society
,

2019 ONCA 841
, 149 O.R. (3d) 18, the new Act reflected a significant
    change for children in care. The
age for protection
    was raised from 16 to 18. The archaic and stigmatizing term Crown ward was
    replaced with extended society care. Other
key changes included:

·

Making services more culturally appropriate for all children and
    youth in the child welfare system, including First Nations, Inuit, Métis, to
    ensure that they receive the best possible supports;

·

Focusing on early intervention, to assist in preventing children,
    youth and families from reaching crisis situations in the home; and

·

Improving review of service providers to ensure that children and
    youth receive consistent, high-quality services across Ontario.

[36]

The
    paramount purpose of the Act remained as it had been: to promote the best
    interests, protection and well-being of children (s. 1(1)). Other purposes in
    s. 1(2) emphasize the best interests of children:

(2) The
    additional purposes of this Act, so long as they are consistent with the best interests,
    protection and well-being of children, are to recognize the following:

1. While
    parents may need help in caring for their children, that help should give
    support to the autonomy and integrity of the family unit and, wherever
    possible, be provided on the basis of mutual consent.

2. The least
    disruptive course of action that is available and is appropriate in a
    particular case to help a child, including the provision of prevention
    services, early intervention services and community support services, should be
    considered.

3. Services
    to children and young persons should be provided in a manner that,

i.
    respects a childs or young persons need for continuity of care and for stable
    relationships within a family and cultural environment,

ii. takes
    into account physical, emotional, spiritual, mental and developmental needs and
    differences among children and young persons,

iii.
    takes into account a childs or young persons race, ancestry, place of origin,
    colour, ethnic origin, citizenship, family diversity, disability, creed, sex,
    sexual orientation, gender identity and gender expression,

iv. takes
    into account a childs or young persons cultural and linguistic needs,

v.
    provides early assessment, planning and decision-making to achieve permanent
    plans for children and young persons in accordance with their best interests,
    and

vi.
    includes the participation of a child or young person, the childs or young
    persons parents and relatives and the members of the childs or young persons

extended family and community, where appropriate.

4. Services
    to children and young persons and their families should be provided in a manner
    that respects regional differences, wherever possible.

5. Services
    to children and young persons and their families should be provided in a manner
    that builds on the strengths of the families, wherever possible.

6. First
    Nations, Inuit and Métis peoples should be entitled to provide, wherever
    possible, their own child and family services, and all services to First
    Nations, Inuit and Métis children and young persons and their families should
    be provided in a manner that recognizes their cultures, heritages, traditions,
    connection to their communities, and the concept of the extended family.

7. Appropriate sharing of
    information, including personal information, in order to plan for and provide
    services is essential for creating successful outcomes for children and
    families.

[37]

Most
    importantly for this case, the new Act changed the criteria for access to
    children in extended care by removing the presumption against access and making
    the childs best interests predominant in determining access. As stated by
    this court in
Kawartha
and repeated in
Peel
, 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 childs 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. and

·

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.

The changes referred to in
Peel
include:

·

Highlighting in the first statement of the
    Preamble that children are individuals with rights to be respected and voices
    to be heard and ensuring that childrens wishes are considered and given due
    respect when any decision is made that affects their lives;

·

Confirming that 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;

·

Expanding the protections and unique considerations
    for all First Nations, Inuit and Métis children;

·

Expanding the age of protection to include 16
    and 17 year olds; and

·

Specifically referencing siblings 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.

[38]

These
    changes and this courts statements clearly inform the analysis of the three
    issues articulated in this case. I turn to those issues now.

Issue 1: Has the test for access under the
CYFSA
changed the meaning of a beneficial and meaningful relationship?

[39]

The
    respondent points out that the
CYFSA
did not change the words a
    relationship between the person and the child is beneficial and meaningful to
    the child. The respondents contend that, with the words still intact, the
    interpretation of the phrase stands, and the pre-
CYFSA
interpretation
    still applies. To support this proposition, the respondent relies on this
    courts decision in
Huron-Perth Childrens Aid Society v. J.L.
,
2019 ONCA 809. The respondent says
    that, in
Huron-Perth
,

this
    court endorsed the pre-
CYFSA
definition of beneficial and meaningful.

[40]

I
    do not agree. This courts decision in
Huron-Perth
offers no support
    for the respondents position. The issues in that case had nothing to do with
    the test for access.

[41]

In
Huron-Perth
,

t
he first appeal judge considered fresh evidence and
allowed
the parents appeal on the issue of access,
granting
access between
    the parents and children. The parents then appealed to this court on the basis
    that the first appeal judge had not gone far enough. They submitted that, on
    the basis of fresh evidence, the trial judge should not
only
have
    awarded access but instead should have reversed the Crown wardship/no access
    order. This court saw no basis to interfere with the first appeal judges
    decision to grant access to the parents. This courts decision does not endorse
    the pre-CYFSA approach to access for it had nothing to do with the access test.

[42]

In
    contrast, this courts decision in
Kawartha
directly addressed the new access test
.
Kawartha
overturned the
    Divisional Court decision below in part
because
applying the old
    restrictive access test was identified as a legal error.

[43]

The
    respondent also argues that the 2004 decision in
Niagara
reflects the
    proper approach to the determination of the words beneficial and meaningful.
    I disagree. It does not advance the scope or purpose of the legislation to
    apply dictionary definitions of a word or a phrase untethered from the context
    of the Act.

[44]

The respondent further argues that there is no reason to depart from
    the
pre-
CYFSA
judicial interpretation of beneficial and
    meaningful relationship as meaning a significantly advantageous
    relationship. Again, I disagree. The judicial injection of the words
    significantly advantageous into the analysis may have applied under the old Act
    but it falls far short of the expansive best interests considerations under the
    new
CYFSA
.

[45]

The
CYFSA
is remedial legislation enacted for the protection of societys
    most vulnerable children. It must be liberally construed to the benefit of the
    child.

[46]

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 childs best interests
    it should consider all relevant factors, including  as I discuss below 
    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.

[47]

By
    adopting a best interests test to determine access, the legislature changed the
    previous highly restrictive test that had tended towards termination of access
    between children and those important to them. Access can be now be ordered for
    a child in extended care if it truly is in the overall best interests of the
    child. The overall best interests involve a consideration of the 15 articulated
    factors
plus
any other circumstance of the case that the person
    [deciding the case] considers relevant: s. 74(3)(c). Under s.105(6), whether
    the relationship is beneficial and meaningful to the child and
only if
    the court considers it relevant
, whether the ordered access will impair
    the childs future opportunities for adoption remain relevant, but only as
    viewed through a global best interests lens.

Issue 2: Can the benefits of a future
    relationship be considered?

[48]

The
    appeal judge concluded that the trial judge erred in law when he said, at para.
    81, that a childs best interests include 
all
relevant factors, whether they be past, present or future considerations
    (emphasis in original). The appeal judge concluded that While this would be
    true for the factors set out in s. 74(3), it does not hold true when
    considering whether there is a beneficial or meaningful relationship between
    the child and the parent. In coming to this conclusion, she relied on
Manitoulin
which held that the relationship is beneficial and meaningful.

[49]

I
    disagree.

[50]

The
    beneficial and meaningful test is not a separate pre-condition as it was
    before. Instead, it is a consideration within the context of the childs best
    interests.

[51]

The
    childs best interests clearly are not static. This is confirmed by the wording
    of s. 74(3) which requires the court to consider: (i)
any
other circumstance of the case; (ii) the childs
development
of a positive relationship; (iii)
continuity
in
    the childs care and the
possible
effect on the
    child of disruption of that continuity; (iv) the
risk
that the child
may

suffer harm through being removed
    from, kept away from, returned to or allowed to remain in the care of a parent
    [Emphasis added].

[52]

The
    underlined words all demand considerations that continue through time. There is
    simply nothing in the plain wording of the current Act to suggest that access
    should be decided without reference to the future.

[53]

The
    trial judge did not err by taking future considerations into account.

Issue 3:
Did the trial
    judge err by referring to the childs medical information and family history?

[54]

The
    trial judge considered as one of the benefits of access that it could mean that
    [the childs] medical information and family history will be more readily
    available. The appeal judge concluded that this was speculation: There was no
    evidence presented at trial in this regard and therefore this equates to an
    error of law.

[55]

It
    was not an error of law to refer to medical history and information for several
    reasons. First, I have set out above that the best interests analysis properly includes
    consideration of the future. Second, this factor was only one of ten listed by
    the trial judge in his consideration of the benefits of access. Third, it was
    not speculative: the child had significant medical issues as a result of
    premature birth. There was no error in the trial judges common-sense
    conclusion that a child with significant medical issues could benefit from some
    form of continuing contact with his biological mother.

Presumption and onus

[56]

Before
    concluding, I wish to address the respondents submissions with respect to
    presumption and onus.

[57]

The
    respondent submits that there remains a presumption against access and the onus
    rests with the person seeking access.

[58]

There
    is no longer a presumption against access. This was confirmed in
Kawartha
, at para. 31,

and
Peel
, at para. 70
.

[59]

The
    issue of onus is more nuanced.

[60]

I
    do not find it helpful to import the concept of onus when the court is required
    to consider and balance the various factors that affect the life of a child in
    protection. The court is not called upon to determine past events and to make
    findings. Instead the court must consider and weigh a number of factors, past,
    present and future.

[61]

There
    is an analogy here to what has been said of the courts approach when
    considering whether a young person should be tried in youth or adult court.
    Like the best interests analysis, the relevant legislation for youthful
    offenders requires the court to weigh and balance enumerated factors.

[62]

In
R. v. A.O.
,
2007 ONCA
    144, 84 O.R. (3d) 561, this court considered the question of onus in connection
    with the then legislation regarding a transfer of a case from youth to adult
    court. The court said, at para. 33:

[The section of the Act] refers to an onus of satisfying
    the youth justice court of the matters necessary for the imposition of an adult
    sentence. This wording tracks the language considered by the Supreme Court of
    Canada in
R. v. M. (S.H.),

1989 CanLII 31 (SCC)
, [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, at pp.
    463-64 S.C.R., pp. 546-48 C.C.C. when it assessed the nature of the onus on a
    party seeking a transfer to adult court  Justice McLachlin, as she then was,
    distinguished an onus to satisfy from the criminal onus of proof beyond a
    reasonable doubt. Speaking for the majority, she said:

Parliament set out in detail the factors which
    must be weighed and balanced, and stipulated that if after considering them the
    court was satisfied that it was in the interests of society and the needs of
    the young person that he or she should be transferred, the order should be
    made.

Nor do I find it
    helpful to cast the issue in terms of civil or criminal standard of proof.
    Those concepts are typically concerned with establishing whether something took
    place. It makes sense to speak of negligence being established on a balance of
    probabilities, or to talk of the commission of a crime being proved beyond a
    reasonable doubt. But it is less helpful to ask oneself whether a young person
    should be tried in ordinary court on a balance of probabilities. One is not
    talking about something which is probable or improbable when one enters into
    the exercise of balancing the factors and considerations set out in [the Act].
    The question rather is whether one is satisfied, after weighing and balancing
    all the relevant considerations, that the case should be transferred to
    ordinary court.

[63]

Similarly,
    the court here was not being asked to make findings of fact about past events.
    A childs 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.

CONCLUSION

[64]

The
CYFSA
requires a new approach to determining access. I note too that
    access can come in many forms that depart from in-person visits. The exchange
    of gifts, emails, video chats or phone calls are all forms of access. The form
    and frequency of access should be tailored to the childs specific needs and age-appropriate
    wishes.

[65]

I
    adopt the words of Sager J. relied on by the trial judge, as set out in
Jewish
    Family and Child Service
:

The introduction of the best interests test in
    the
CYFSA
brings a less rigid and more flexible approach to deciding
    whether to order access to a child placed in the extended care of the society,
    as a court is now permitted to give consideration to any factor it considers
    relevant, one can assume, on the well accepted principle in cases involving
    children that one size does not fit all.

The trial judge here endorsed this approach and added:

When a court
    considers a childs best interests it should consider
all
relevant
    factors, whether they be past, present or future considerations. That is what
    courts do in making custody and access decisions

there is a predictive element in all of these decisions. There is
    no need for a court to confine itself to past or present circumstances in
    conducting its analysis. The new access test now permits the court to conduct a
    more holistic and comprehensive analysis of what is best for a child. The more
    expansive analysis will permit courts to make the best possible decisions for
    children. [Emphasis in original.]

[66]

The
    trial judge applied the correct approach.

[67]

I
    would allow the appeal and restore the trial judges determination as to
    access.

[68]

No
    party requested costs, so I would not order costs.

Released: June 25, 2020

DD

M.L.
    Benotto J.A.

I
    agree Doherty J.A.

I
    agree C.W. Hourigan J.A.





[1]
Ontario, Ministry of Children and Youth Services,
Report on the
    2015 Review of the Child and Family Services Act
(April 1, 2015).


