Introduction

This case commenced with an initial protection trial in which the Court ordered the appellant’s two children were to be placed in the society’s care. The mother, an older sibling and the maternal grandmother were all granted access, however this access was ordered to be at the discretion of the Children’s Aid Society. The mother appealed this decision and requested that the children be placed in her custody with society supervision or in the alternative that she be granted specific access to both children if they were to remain in the care of the society.

Background

Section 74(3) of the Child, Youth and Family Services Act sets out the factors a court should consider when determining the best interests of a child. Specifically, Section 104 of this Act mandates that a court determine access in terms of the child’s best interests. Section 104, states that the Court may, ” make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate”.

The emerging legal issue then becomes, is the Court permitted to delegate all decisions concerning an access order to the society?

Analysis

Two groups of case law have emerged on this topic. The first stream of case law finds that it is an error of law for a court to delegate a child’s access at the discretion of the society. This group of case law is widely supported by other Ontario Superior Court Justices who have determined that this is an improper delegation of the court’s authority on access orders (see also: Children's Aid Society of Toronto v. N.N., 2017 Carswell Ont 19171 (C.J.); Childrens Aid Society of Toronto v. P. (D.), 2005 CarswellOnt 11499 (S.C.J); and Children's Aid Society of Toronto v. C.B (July 23,2007), (Ont. C.J.) )

The second line of case law supports access awards that are at the discretion of the society. The argument to this body of case law is that the society is statutorily mandated to supervise children in its care, meaning the courts should allow the society discretion over access orders.

Conclusion

In this case the appeal was allowed on the terms and conditions of access because the Court found that it was an error of law for the trial judge to delegate all discretionary decisions to the society. More specifically, the Court held that the Society acts like a custodial parent and has the right to grant additional visits or supplement in person visits with additional communication. Essentially, the minimum rights of access are established by the court and the Society may supplement this order.

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