Family Law News: A “Beneficial and Meaningful” Decision on post-extended care access
By Imran Kamal, Catholic Children’s Aid Society of Hamilton
Before the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) came into force in 2018, in Ontario there was a legislative presumption against access after a grant of Crown Wardship. The old legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”), required that once an Order for Crown Wardship was made, a person seeking access had to establish that the relationship “is beneficial and meaningful” to the child, and that the access would not impair the child’s opportunities for adoption. The onus was on the person(s) seeking access.
In 2018, the CFSA was repealed and replaced with the CYFSA. The new Act still requires the court to consider whether the relationship is “beneficial and meaningful” to the child, however, that is just one of numerous considerations for determining whether access would be in the child’s best interests. The overarching test is now best interests and a holistic approach is taken. The Court of Appeal in Ontario recently released a decision which clarifies various interpretations through case law since the new legislation came into effect.
In Children’s Aid Society of Toronto v. J.G., the trial judge (Justice Sherr) applied the new approach to the determination of access and ordered access at the discretion of the Children’s Aid Society. The appeal judge (Justice Shore) in the SCJ applied the older and more restrictive test (even though the legislation has the same wording), allowed the appeal, and overturned the decision.
At the initial hearing, the mother ultimately consented to an extended society care order, and the only issue before the Court was the mother’s access to the child. Access was ordered.
The appeal became the interpretation of the words “beneficial and meaningful”. Did the new legislation change the meaning of that phrase?
The Society’s position asked the Court to follow the cases under the CFSA that narrowly interpreted the words “beneficial and meaningful” – the old case law.
Justice Sherr rejected that position and found that a more expansive inquiry was required given the new statute and recent Court of Appeal decisions (namely Kawartha-Haliburton Children’s Aid Society v. M.W. (2019), 24 R.F.L. (8th) 32 (Ont. C.A.), and in L.M. v. Peel Children’s Aid Society (2019), 33 R.F.L. (8th) 288 (Ont. C.A.). Based on that more expansive analysis, the OCJ concluded that the benefits of the mother’s relationship with the child outweighed any detriments and that the relationship was beneficial and meaningful for the child. His Honour found that it was, presently and in the future, in the child’s best interests to have continued access with the mother at the discretion of the Society.
The OCJ Order was appealed by the Society to a single judge of the Ontario Superior Court of Justice - the Honourable Madame Justice Sharon Shore.
Justice Shore concluded that the trial judge had erred in assigning a “new definition” to the “same words” - “beneficial and meaningful” under the CYFSA. Her Honour reviewed the case law on the interpretation of “beneficial and meaningful” and concluded that the previous interpretations still applied. Her Honour also found that the trial judge had 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 may become so in the future.
The Respondent mother then further appealed to the Court of Appeal, where the main issues were 1) is there a new meaning of the term “beneficial and meaningful” relationship for access under the CYFSA? And 2) Can the benefits of a future relationship be considered in the “beneficial and meaningful” consideration?
Since the CYFSA came into force, two lines of cases developed with respect to access for a child in extended care: one school following the old test from the CFSA and the other taking a more expansive approach.
The Honourable Justice Benotto started with the proposition that the words of a statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute and the intention of Parliament. That is a fundamental principle of statutory interpretation. To meet that objective, the Honourable Justice Benotto moved on to consider the objectives and scheme of the CYFSA.
The Honourable Justice Benotto relied on two recent Court of Appeal decisions in child protection law that broadened the interpretations of the CYFSA. As the Court of Appeal said in Kawartha-Haliburton Children’s Aid Society v. M.W. and in L.M. v. Peel Children’s Aid Society, the new Act reflected a significant change for children in care, including replacing some stigmatizing terms “Crown ward” with “extended society care”, making services more culturally appropriate for all children and youth in the child welfare system, particularly 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.
In the context of access for children in extended care, the Court of Appeal changed the criteria for access by removing the presumption against access and making the child’s “best interests” paramount. As the Court of Appeal noted in Kawartha and Peel, the change was not “just semantics”, but represented “a significant shift in the approach to access for children in extended care.”
Considering these expansive changes and the previous decisions of the Court of Appeal in Kawartha and Peel, the Honourable Justice Benotto determined that the test for access under the CYFSA changed the meaning of a “beneficial and meaningful” relationship.
The Court of Appeal made it clear that as a result of the changes to the CYFSA, it was no longer appropriate to apply older cases that simply applied a dictionary definition to important words “untethered from the context of the Act.” As remedial legislation with the purpose of protecting Society’s most vulnerable children, the CYFSA must be liberally interpreted and applied to the benefit of the child. The new access test is no longer just a “beneficial and meaningful” test. Rather, it is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as but one aspect of that analysis. More interesting, now, when a court considers a child’s best interests, it will consider all relevant factors including past, present and future. The new post-extended care access test now takes a holistic and comprehensive analysis of the best interests of the child.
The Court of Appeal found that the SCJ appeal judge erred in concluding that the trial judge had erred in law when he said that a child’s best interests include “all relevant factors, ‘whether they be past, present or future considerations’” (at para. 81). The “beneficial and meaningful” test is no longer a separate pre-condition as it was under the previous legislation. Now, it is just one consideration in the best interests analysis.
To think of it this way, the best interests of a child are not static. This is confirmed by the wording of s. 74(3), which requires the court to consider “any other circumstance of the case.” According to Justice Benotto, “[t]here is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.”
This case is a binding authority on all OCJ and SCJ decisions in Ontario and significantly shifts the interpretations of many previous decisions relating access after Extended Care. This case puts to rest the interpretation of the new test as we were all operating with two lines of cases with different interpretations.
In contrast, some jurisdictions, such as New Brunswick, for example, continue a statutory and common law presumption against access after a grant of Society Guardianship. This presumption was recently affirmed by the New Brunswick Court of Appeal in J.C. v. Minister of Families and Children, 2020 CarswellNB 162 (C.A.), additional reasons at 2020 CarswellNB 252 (C.A.).
We are now in a time where post-Extended Care access considerations are very different than they were a couple of years ago, or even a few months ago.
Imran Kamal is legal counsel with the Catholic Children’s Aid Society of Hamilton. He can be reached at:
905-525-2012 ext 3237, or by email at Imran.Kamal@hamiltonccas.on.ca.