Adoption transforms lives, weaving together families and building new futures. In Ontario, the laws governing adoption have evolved significantly over the years, with the Child, Youth and Family Services Act, 2017 (CYFSA) replacing the Child and Family Services Act, 1990 (CFSA).
This transition reflects a broader understanding of openness in adoption, emphasizing the importance of relationships, culture, and identity for children. Let’s take a journey through this evolution, comparing the old legislation with the new, and telling the story of a child whose life could be profoundly impacted by these changes.
Sarah’s Story: Bridging the Past and the Future
Imagine Sarah, a ten-year-old girl in foster care, facing adoption. Under the old CFSA, Sarah’s adoption might have meant losing all contact with her birth family—her grandparents, who shared stories of her cultural roots, and her elder cousin, who promised to teach her traditional songs. For Sarah, adoption offered stability and a loving home, but it also risked cutting her off from the connections that grounded her identity.
Under the new CYFSA, Sarah’s adoption can be different. Openness agreements and orders allow her to maintain meaningful ties to her family and culture while integrating into her stable adoptive family. This balance between past and future defines the shift from the CFSA to the CYFSA.
From the CFSA to the CYFSA: Key Changes
1. Defining Openness
Under the CFSA:
The concept of openness was introduced but limited. Openness agreements (s. 153.6) were voluntary and typically focused on maintaining contact with birth families. However, they lacked clear procedural safeguards and enforcement mechanisms.
Openness orders (s. 145.1) allowed courts to preserve relationships post-adoption but were often narrowly applied and required an existing access order.
Under the CYFSA:
Openness has become more robust and inclusive. The new Act expands who can participate in openness agreements (s. 212) and orders (s. 194-198). For example, Indigenous bands and communities now have standing to preserve cultural ties, reflecting Ontario’s reconciliation commitments.
Courts have clearer guidance on varying or terminating openness orders, with a structured process ensuring the child’s best interests remain paramount.
2. Indigenous Children and Cultural Ties
Under the CFSA:
Indigenous children were often categorized as "Indian or native persons" (s. 141.2), with some provisions for their cultural needs. However, these were minimal and lacked practical mechanisms for preserving cultural ties.
Under the CYFSA:
Indigenous children are recognized as First Nations, Inuit, or Métis (s. 186). The Act mandates consideration of their cultural, linguistic, and spiritual needs. Customary care placements are explicitly supported, and openness orders can involve Indigenous communities to maintain the child’s connection to their heritage.
3. Procedural Safeguards
Under the CFSA:
Openness agreements were often informal, leaving room for disputes and uncertainty about their enforceability.
The CFSA lacked clear timelines or criteria for varying or terminating openness orders, which could result in prolonged legal battles.
Under the CYFSA:
Openness agreements must now be documented in writing and can involve dispute resolution mechanisms. The Act does not require a court to approve the agreement. They can be modified more easily than court orders to ensure they serve the child’s evolving needs.
4. Modernized Language
Under the CFSA:
Terms like "natural parent" were commonly used.
Under the CYFSA:
The Act adopts terms such as "birth parent," acknowledging diverse family dynamics.
Key Changes from CFSA to CYFSA
Here’s how the two Acts compare in the area of openness orders and agreements:
CFSA (1990) | CYFSA (2017) | What Changed |
Openness Orders (s. 145.1) | Expanded Standing (s. 197) | Indigenous bands, communities, and relatives now have standing to apply for openness orders. |
Termination of Access Orders | Access Transitions to Openness | Transition processes for access orders into openness orders are more structured and child-focused. |
Openness Agreements (s. 153.6) | Broader Scope (s. 212) | Agreements can now include Indigenous communities and other significant relationships. |
No Licensing Framework | Licensing of Adoption Agencies | New provisions (s. 229-237) ensure consistent practices and accountability for adoption agencies. |
Limited Cultural Provisions | Indigenous Recognition | Emphasis on cultural preservation and customary care for First Nations, Inuit, and Métis children. |
Sarah’s New Path Under the CYFSA
With the CYFSA, Sarah’s story unfolds differently:
Openness Agreements: Her adoptive parents enter into a written agreement with her grandparents, ensuring regular visits and shared celebrations. This allows Sarah to retain her cultural identity while building a future with her new family.
Cultural Continuity: Her Indigenous heritage is safeguarded by an openness order involving her band, who can participate in teaching her traditional practices and maintaining ties to her community.
Stability and Clarity: The written agreements and court-approved orders provide all parties with clarity and enforceability, minimizing potential disputes.
Why the CYFSA Matters
The CYFSA isn’t just about laws; it’s about stories like Sarah’s. It’s about recognizing that children are more than their present circumstances—they are deeply connected to their past, their culture, and their communities of people who care about them. By modernizing adoption laws, the CYFSA ensures that children like Sarah don’t have to choose between stability and identity—they can have both.
Takeaways
Openness is Broader and Stronger:
Agreements and orders under the CYFSA prioritize preserving meaningful relationships while protecting adoptive families' stability.
Cultural Connections are Essential:
Indigenous children are given special consideration, ensuring their heritage remains part of their lives.
The Child’s Best Interests Come First:
Every decision, whether it’s creating, varying, or terminating an openness arrangement, is guided by what’s best for the child.
Looking Ahead
Adoption is a lifelong journey, not just for children but for everyone involved. The CYFSA equips families, communities, and professionals with the tools to navigate this journey thoughtfully.
If you’re involved in adoption or supporting someone who is, understanding the CYFSA’s openness provisions is crucial.
This article is for informational purposes only. If you'd like to get legal advice on your circumstances, fell free to contact us for a consultation with a lawyer: (519) 660-0006 or info@paonessalaw.ca.
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