Legislative Changes Recognizing the Importance of Connections with Family and Community
It is anticipated that the Child, Youth and Family Service Act (CYFSA)1 will be proclaimed in 2018 and will replace our current child protection legislation, the Child and Family Services Act (CFSA). The CYFSA introduces comprehensive amendments including:
- increasing the age of protection to include 16 and 17 year olds, allowing Children’s Aid Societies to expand services to these youth (these amendments will come into force before the new Act is proclaimed);
- comprehensive provisions supporting Indigenous families and children;
- provisions to provide more culturally appropriate services for all children and families;
- amendments to ensure the child is placed at the centre of all decisions and to ensure children’s voices are considered in those decisions;
- significant changes in language throughout the Act; and
- a new scheme governing the disclosure and release of information by service providers including Children’s Aid Societies.
The legislation also includes amendments to strengthen a child’s ability to maintain contact with family when they are permanently removed from the family’s care. Most significant is the new test for access to Crown wards (referred to as “extended care” under the CYFSA). The new provisions require the Courts to use a best interest test as opposed to the more stringent test under the CFSA that required the person seeking access to show that the relationship was beneficial and meaningful and would not impair adoption. The CYFSA will require courts to consider all elements of the best interest test to determine if a child will be able to maintain a connection to family, including siblings, when they are permanently removed from their family.
The CYFSA also further strengthens the openness provisions introduced in 2006 and 2011 to formalize relationships between children and their biological family post adoption. The enhancements recognize the growing body of research supporting the benefits of openness including:
- minimizing grief and loss for children;
- supporting a child’s connections to his or her culture and history;
- supporting sibling relationships;
- assisting children, particularly in their teenage years, when they are developing their identity; and
- preventing an idealization of a birth family that can occur in closed adoptions.2
The 2006 amendments formalized openness agreements and consent openness orders under the CFSA. Orders were not widely utilized as they could only be brought by Children’s Aid Societies and with the consent of all parties. The 2011 amendments significantly expanded the scope of openness orders in Ontario by allowing children and other parties, who had been granted access orders, to bring an application to preserve contact post adoption. The legislation also placed a positive obligation on Societies to consider the benefits of openness in every case where adoption was being planned.
Since the introduction of the 2011 amendments, the Office of the Children’s Lawyer (OCL) has brought several hundred openness applications on behalf of children who are being adopted and want to maintain connections with family members, especially siblings. The vast majority of the applications have resulted in consent orders with children maintaining some form of openness.
The CYFSA further enhances the 2011 openness provisions:
- the new test for access to Crown wards outlined above will likely result in more access orders. Access orders are the mechanism that allow a child to seek an openness order;
- a new scheme for Indigenous children has been introduced that allows a child or a member of the child’s community to bring an application for openness prior to adoption, irrespective of whether there is an access order. The specific purpose of this section is to support Indigenous children to maintain a connection to their community in cases where formal adoption is planned;
- the best interest test applied in openness applications now lists the importance of a child’s continued contact with biological family post adoption as a factor to be considered; and
- the new legislation clarifies that upon adoption disruption or breakdown an openness order will continue until it is varied or terminated, ensuring that children will not lose both an adoptive family and contact with birth family at the same time.
The enhancement of the openness provisions under the CYFSA have to be viewed in the context of other realities in adoption. The Ontario government has identified permanency for Crown wards as a priority to reduce the number of Crown wards who age out of care without family supports. To achieve this goal, the government has introduced a number of initiatives including expanding adoption subsidies to assist in adoptions of older children and sibling groups3. Many of these older children have established relationships that they want and need to maintain post adoption.
Social media has also created a new reality in adoption. Children and birth parents can reconnect on social media at young ages and in ways that can be unsafe. Creating and managing an openness plan can help children stay connected in a safe way that does not send the contact underground4.
While there are significant benefits to openness in adoption, there are also significant challenges and any openness plan must consider each individual child and family. Children, birth families and adoptive families all need help and support to navigate these complicated relationships. The amendments in the CYFSA recognize the importance of working through these complications if the ongoing contact is in the best interests of the child.
1The new Act can be found at: www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4479&detailPage=bills_detail_the_bill
2 The following three links provide information and summaries of research on the benefits of openness in adoption for children and families:
She can be contacted at Elizabeth.McCarty@ontario.ca , or (416)314-8108.