Recent case: Interpreting the access test of the Child, Youth and Family Services Act

Recent case: Interpreting the access test of the Child, Youth and Family Services Act

Jewish Family and Child Service of Greater Toronto, v. K.B., 2018 ONCJ 650

While this case does not pertain to family violence, in it Justice Sager makes relevant comments on the legislative interpretation of the Child, Youth and Family Services Act‘s (CYFSA) new access test for children placed in extended society care. Her decision provides a liberal and flexible interpretation that has been endorsed by Children’s Aid Society of the Regional Municipality of Waterloo v. J.D. and, more recently, by Children’s Aid Society of Toronto v. J.G.

Justice Sager notes the rigidity of the previous test under the CFSA that the court had to apply when a party requested access to a child placed in extended society care. This access test was difficult for parents to meet, because they had to demonstrate that their relationship with the child was beneficial and meaningful, and ignored the variety of needs that children may have. Benefits a child could have from a relationship with their parents, such as a connection to their heritage or direct access to family medical information, would be demonstrated by a beneficial and meaningful relationship already in place.

The new test under the CYFSA requires the court to consider, as part of the best interests analysis, whether the relationship between the child and the person seeking access is beneficial and meaningful. The court is no longer required to find that relationship beneficial and meaningful before granting an order for access, as it is permitted to give consideration to any factor it considers relevant. Justice Sager states:

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… 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.

This case summary was prepared by Kevin Chao, when he was a Luke’s Place articling student in 2019.

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