Court File and Parties

Ontario Court of Justice

Date: 2015-05-04

Court File No.: Halton A14/50

Between:

K.J.K. Applicant

— And —

M.J.H. Respondent

Before: Justice V. Starr

Heard on: May 1, 2015

Reasons for Judgment released on: May 4, 2015

K.J.K. ...................................................................................................... on his own behalf

M.J.H. ...................................................................................................................... not appearing

STARR J.:

INTRODUCTION

1These are the Court's written reasons for its decision of May 1, 2015 to dispense with the consent of the biological father to the adoption of the child by the child's stepfather.

RELEVANT PROCEDURAL BACKGROUND

2K.J.K., the stepfather of 6 ½ year old F.N.B. ("F.N.B." or "the child"), born 2008, brought a motion for an order dispensing with the consent of the child's biological father, M.J.H., to the his adoption of the child pursuant to section 138 of the Child and Family Services Act, R.S.O. 1990, c. 11.

3The child's biological mother, G.K., is married to the applicant stepfather, and supports the stepfather's motion and application for adoption.

4The child's biological father, M.J.H., was personally served with the notice of motion, supporting affidavit and application for adoption on January 15, 2015 in the Philippines, where he resides. He did not serve and file an answer or respond in any other way to the motion or the application. He was not present for the hearing of this motion and thus, has not participated in any fashion in these proceeding.

5The motion first came before the Court on March 6, 2015. The Court adjourned the motion so that it could review the materials. On March 10, 2015, the Court noted the respondent in default but adjourned the substantive portion of the motion as it required additional evidence. The Court directed that the stepfather and the child's mother attend on a date set by the Court to give that evidence orally.

6The date set for the oral hearing was May 1, 2015 and the matter proceeded on that date. Both the stepfather and the mother were present but only the mother provided oral evidence. The evidence on this motion therefore consists of the mother's oral evidence given on May 1, 2015, and the stepfather's affidavit evidence. As noted, at the conclusion of the hearing this Court ordered that the biological father, M.J.H.'s consent to the adoption of the child, F.N.B. by the stepfather, K.J.K. was dispensed with. The Court indicated that these written reasons would follow.

THE EVIDENCE

The Relationship of the Biological Parents and the Biological Father's Involvement with the Child

7The mother and the biological father are both Filipino. They were living in the Philippines when the child was born on 2008, in Baguio City, Benguet, Philippines.

8At the time of the child's birth her biological parents were neither married, nor living together. They did eventually marry and cohabited very briefly from May 2010 until July 2010.

9According to the mother, throughout the relationship with M.J.H.:

(a) She was the primary caregiver of the child;

(b) M.J.H.'s role in caring for the child was very limited. He occasionally did such things as put her to bed and change her diapers. He did not perform the day to day caregiving tasks;

(c) She was the one to support the child financially as M.J.H. did not share the money he received from his family or any of the income he earned when he was working, with the mother.

(d) M.J.H. had a temper did not have patience for dealing with the child's crying. He would scream at the child and call her names such as retarded; and

(e) M.J.H. was violent towards the mother and physically assaulted her many times. Many of these incidents occurred in front of the child's half-sister, K., and negatively affected her.

10The parties separated in July 2010 when the biological father was arrested for assaulting the mother.

11The mother brought an application for custody in the Ontario Court of Justice. The father did not serve and file an answer or participate in any way in those proceedings. On October 12, 2011, Justice Dunn of the Ontario Court of Justice noted the biological father in default and made a final order. The final order of Justice Dunn grants the mother sole custody of the child and the father access to the child at the discretion of the mother as to the frequency, duration, supervision, and other conditions set out in writing and signed by the mother. That order also prohibited the biological father from removing the child from the province of Ontario and authorizes the mother to travel or change the residence of the child without notice to or consent by the biological father.

12The mother recalls that as a result of the father's assault on her he was not permitted to have any contact with her and was required to take an anger management course/counselling. He moved back to the Philippines without completing the anger course and while he was still subject to conditions. The mother learned this from the police who met with her. They told her they were looking for him, had a warrant for his arrest, and asked her to call them if she heard from him. Given that he will be arrested should he return to Canada, the mother believes that he has no intention of returning.

13The mother and biological father were divorced in 2012. To obtain the divorce the mother had M.J.H. served in the Philippines. He did not defend those proceedings and the divorce was granted on an uncontested basis.

14The biological father has not had contact with the child and he has not made any attempt to have contact with the child since he and the mother separated in July 2010. The same applies to his extended family. The mother and M.J.H. are from a small town in the Philippines. Members of the mother's family as well as members of M.J.H.'s family still live there and they know of each other. Many of the mother's friends (friends M.J.H. knows from when they both lived there) still live there. As well, the mother and M.J.H. have mutual acquaintances who still live there. It would have been relatively easy for the father or members of his family to reach out to people who know the mother to initiate some form of contact or relationship with the child. The fact that neither the biological father nor his family have done so, is clear indication that there is no desire for such contact or relationship.

15The biological father has made no attempt to contribute to the financial support of the child and he has never paid any child support.

16Given the foregoing, the last time that the father had any contact with the child or involvement in her care and upbringing was about 5 years ago, in July 2010, when she was about 1¾ years old. She is now 6½ years old.

17From the mother's perspective, and taking into account all of the foregoing circumstances, if the father had any intention of having a relationship with the child, he would have reached out to her by now. He has not done so, and thus, it is highly unlikely that he will ever do so. There is no realistic possibility that M.J.H. will ever have a relationship with this child.

The Child's Home in the Home of the Stepfather

18The mother and stepfather met in July 2011 and were couple by August 2011. They (including the children) moved in with one another in April 2013 and got married in August 2013.

19The family constellation consists of:

a. The mother and stepfather;

b. K., who is 11 years old. She is the mother's biological child from a prior relationship. K. is F.N.B.'s half-sister;

c. F.N.B., the subject child; and,

d. E., the biological child of the mother and the stepfather and half-sister to F.N.B. E. is 10 months old.

20In his affidavit filed in support of the adoption application, sworn December 5, 2014 the stepfather deposes as follows:

(a) The family lives in Burlington Ontario;

(b) He is an elementary school teacher and teaches grade 8 at a school in Hamilton. He has been teaching for eight years;

(c) He obtained a bachelor of science in business (honors degree) from the University of Waterloo and went to Brock University for his bachelor of education degree;

(d) He lives a healthy and active lifestyle and ensures their daughters also lead this type of life by coaching K.'s baseball team and F.N.B.'s soccer team;

(e) Currently the biological mother and the three children are covered under his employee benefits for their healthcare needs.

21The mother also works full time in the field of information technology, although she is on maternity leave right now. She described that she and the stepfather combine their financial resources for the support of the family and themselves.

22The mother described her relationship with the stepfather as "pretty good" and stable. She described the division of labour in the household as follows: she does most of the family cooking and the stepfather does almost everything else. The biggest thing they argue about is whether to hire a nanny. The mother said that there is no abuse. They are happy.

The Child

23By all accounts the child is a happy little girl who is quite a character. She likes to joke, to dress up like a princess, play with her dolls, and participates in extracurricular activities such as soccer, swimming, gymnastics and more recently, dances (ballet).

24Based upon both the evidence of the mother and that of the stepfather, the child is well adjusted and thriving. She has no special needs. She has no emotional, social, developmental, or behavioural problems or issues. She is also doing very well academically. She is meeting all of her developmental milestones.

25The issues of religion and culture were also canvassed with the mother. The mother was born and raised as a Roman Catholic and so are the girls. The stepfather is also Roman Catholic. The child attends at a Catholic public school. The family goes to church every week. There are no plans to change any of this. The child is also Filipino-Canadian. The mother described these two cultures as being well and very integrated in her family. She attributes this to the fact that her mother also lived in Canada, as did she and now the child. The child is third generation of Filipino-Canadian. She has exposure to her cultural and ethnic roots via her biological connection to her mother and sisters, via exposure to her mother's extended family here in Canada, and through food, as the mother often cooks meals based on Filipino cuisine.

Stepfather's Relationship with the Child

26The child was not even two years old when she last saw her biological father and she has never said or done anything that would indicate that she has any memory of her biological father.

27According to the mother, the child sees the current family unit as her family and it is the only real family she has ever known. As such, the child sees the stepfather as her father and she calls him daddy. She has not been told and does not know that the stepfather is not her biological father.

28According to the stepfather, his relationship with the child took a little bit of time to develop but has turned into something natural and beautiful. The child was young enough at the time when he became involved in her life that she believes he is the biological father. He feels that F.N.B. as his own child and he is overwhelmed with feelings of love when he thinks about their relationship and the bond they share with each other.

29The stepfather's evidence is also that:

(a) He comforts the child when she is sad, takes care of her when she is hurt or sick, plays with her, jokes with her, and is always there for her;

(b) He is teaching her how to ride her bike and he has enrolled her in ballet and gymnastics this year;

(c) The child also enjoys swimming and he takes her to the pool in their townhouse complex;

(d) He wanted the child (all of the children) to enjoy cottage life so he took the whole family for a week to a cottage up north. The child had an amazing time, fishing, swimming, canoeing, and having a bonfire to make s'mores. The trip was a great experience for the child;

(e) He reads to the child and helps her read and work on her math skills almost every night;

(f) He loves the child unconditionally and would do anything for her. He will be there for her to guide her and provide for her as she grows into a beautiful, smart woman.

30According to the mother, it is the stepfather who takes the child to doctor's appointments and dentist appointments. He has also been the one to go to two parent-teacher interviews (without her) and he has participated in at least one parent-child school event. He is a very involved father. According to the mother the child is a "daddy's girl" and is very close to and bonded with the stepfather.

31The child also has a relationship with the stepfather's extended family. She sees his parents as her grandparents and sees his sister as her aunt. These individuals have accepted the child into their family and treat her as if she is their natural granddaughter or niece.

What the Child Stands to Gain and Lose if Adopted

32When asked what would happen if the child was told that the stepfather was not her biological father, the mother said she did not know but in all likelihood nothing as the child is too young to understand the difference between the two types of fathers. To the child, her father is K.J.K. When asked if she would ever be told that the stepfather is not her biological father the mother said that they would cross that bridge if and when they ever come to it.

33When asked what the child would lose in terms of a relationship with her biological father if the stepfather was permitted to adopt her, the mother said "nothing, there is nothing to lose"; the child's only tie to her biological father is by blood but that does not seem to count to M.J.H.

34When asked what the child stands to gain if adopted by the stepfather, the mother's response was that: aside from formalizing this child's reality, it would mean that the child has a responsible father, one who will love her, who will protect her, who will provide for her, and, one who will be there for her. She will have the father she deserves.

STATUTORY AUTHORITY AND THE JURISPRUDENCE

35Pursuant to subsection 137(2) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, the written consent of every parent is required before an order for adoption can be made. Section 138 provides:

138. Dispensing with consent. -- The court may dispense with a consent required under section 137 for the adoption of a child, except the consent of the child or of a Director, where the court is satisfied that,

(a) it is in the child's best interests to do so; and

(b) The person whose consent is required has received notice of the proposed adoption and of the application to dispense with consent, or a reasonable effort to give the notice has been made.

36In looking at the best interests of the child, the court is directed to the criteria set out in subsection 136(2) of the Act that may be relevant to the circumstances of the case. The test is a strict one and the onus rests on the applicant to show that the dispensing of consent and subsequent adoption is in the child's best interests. Section 136 of the Act sets out the criteria for the court to consider in making this determination:

Best interests of child. -- Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships by blood or through an adoption order.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The child's views and wishes, if they can be reasonably ascertained.

9. The effects on the child of delay in the disposition of the case.

10. Any other relevant circumstance.

37The best interests test in the context of an adoption proceeding is not the same best interests test in the context of a custody and access proceeding for obvious reasons. A custody or access order can always be reviewed upon a material change in circumstances. An adoption order is final and irrevocable. It may not be questioned or reviewed in any court. As Justice Marion L. Cohen stated in M.A.D. and C.A.D. v. M.K., 2009 ONCJ 18:

[70] ... For all purposes of law, as of the date of the making of an adoption order, the adopted child becomes the child of the adoptive parent, the adopted child ceases to be the child of the parent who was his or her parent before the adoption order was made, and ceases to be the relative of the former parent's relatives. For this reasons, adoption has been characterized in many cases as the "statutory guillotine of the biological relationship". Adoption results in the final and irrevocable severance of the biological bond between parent and child.

38In M.A.L. v. R.D.M., Justice Cheryl J. Robertson set out the following four principles to apply in considering the best interests test under section 138 of the Act:

1. The court must consider the best interests factors set out in subsection 136(2) of the Act;

2. The court must balance what the child will gain and lose, with emphasis on what the child will gain;

3. The decision must take into account the child's wishes, as best as those can be ascertained;

4. The court must consider the child's existing family reality.

39It is no longer necessary to find parental misconduct to dispense with the natural parent's consent to adoption. The exclusive focus is the child's best interest, not the rights of the natural parent. Parental misconduct or abandonment is only relevant if the non-consenting parent continues to engage in conduct that is not beneficial or even harmful to the child: see S.I.L. v. L.J.L. and L.J.L.. See also M.L. and G.L. v. S.M., 1989 CarswellOnt 1385.

40In cases of stepparent adoptions, the court should be mindful of improper motive. The parent and stepparent cannot use the adoption process to terminate the relationship between the child and the natural father because this relationship creates difficulties for the mother and stepfather; see Smith v. Harvey, affirmed at 1975 CarswellOnt 140 (Ont. C.A.).

41Furthermore, the court should consider whether a stepparent application to adopt is premature. If the application by the stepparent is made in the early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent's relationship with a child before assessing the stability and permanence of the relationship between the stepparent and the other parent: Re Pennington.

42Where the natural father has shown a genuine interest in the child, even though separated, and the child has an emotional attachment to the natural father, courts have been very reluctant to dispense with the father's consent. Where the relationship is non-existent, courts are more persuaded to dispense with the natural parent's consent. See Smith v. Harvey.

43Within this legal context and using the foregoing legal principals to guide me, I now turn to consider each of the criteria under subsection 136(2) of the Act which is relevant to this case.

ANALYSIS

The Child's Physical, Mental and Emotional Level of Development

44The child is almost 7 years old. There is no evidence that her development has been anything other than normal or that she has any difficulties whatsoever in any areas (i.e. Emotional, physical, social, behavioural). Her development has been supported entirely by the mother and the applicant.

The Appropriate Care or Treatment to Meet the Child's Physical, Mental and Emotional Needs

45The evidence of both the stepfather and the mother demonstrates that the stepfather is a caring and loving father to the child. He has attended most of her doctor and dentist appointments as well as parent-teacher interviews. He takes her swimming, reads to her each night, and is teaching her to ride a two wheeler. He provides financial security for the child. They are well bonded and love each other.

46All of the evidence presented by the stepfather and the mother attest to the fact that F.N.B. is a healthy and happy child. It appears, from the fact that the child is thriving, that both the stepfather and the mother have done an excellent job of meeting the child's physical, mental and emotional needs. There is no evidence to the contrary.

The Importance for the Child's Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family

47Here the Court must assess whether it is possible that the child could develop a positive relationship with her biological father and weigh the potential benefit of this against the importance of a secure place as members of a family for the children.

48There is no question that the current family constellation is the only family that this child knows. Adoption will formalize this reality and bring with it greater security for the child. There are clear benefits that come with adoption that are not available in a custodial arrangement. As Justice Margaret A. McSorley stated in P.C. v. P.C.C.-G., 2004 ONCJ 130:

[36] ... adoption brings with it similarity in family name, security at home in a family unit, benefit of stability in inheritance situation or upon the death of a biological parent, confirmation of the reality of who is doing the parenting and reaffirmation of sibling relationships. Weighing these advantages against unknown, future and unlikely benefits from the biological father, this factor must be given great weight in these circumstances.

49In the case of J.-H.A. v. T.L., Justice Robert J. Smith stated the following in assessing what the child would gain and lose by the adoption in a case where the child did not know her biological father:

[20] When assessing the child's best interest, I must consider what would be gained as against what would be lost by the adoption. In this case, the gain for the child would be substantial, namely preserving a positive relationship with the applicant, and his brother, preserving a secure place in his current family, ensuring continuity of his care, avoiding the disruption and upset at having to develop a new relationship with his biological father; and his views would be respected by allowing him to be just like his younger brother and be a part of the A. family.

[21] What would be lost by the child in this case is not substantial because, while it is important to develop a relationship with both natural parents, he does not have any current relationship with his natural father who he has not seen for the last five years and who has not supported him or been involved with any activities with him for the past five years and had minimal involvement since his birth.

[22] The child's existing family reality is that he enjoys a secure place in his current family which is stable and supportive and meets the child's needs. Denying the adoption would put the child's current stable and positive situation at risk and may result in disruption for the child.

50There is no evidence to suggest that the natural father wants to develop a role at this point in the child's life and no evidence to suggest there is any possibility of a future reconciliation between the child and her biological father. The child's stability and permanence in her current family and the benefits of adoption far outweigh this highly uncertain possibility.

The Child's Relationships by Blood or through an Adoption Order

51The child is related by blood to her mother and biological father. However, that is the extent of her relationship her biological father. Her mother and the stepfather are the only parental figures she knows. An adoption order will clearly strengthen that relationship.

The Importance of Continuity in the Child's Care and the Possible Effect on the Child of Disruption of that Continuity

52The child has had the continuous care of her mother since birth and the continuous care of her mother and stepfather since August 2013. She knows her stepfather to be her daddy and calls him "Daddy". The child knows her family unit as consisting of her mother, stepfather and two sisters. She knows the stepfather's parents' to be her grandparents along with her maternal grandmother. She knows her mother's and stepfather's siblings to be her aunts and uncles. She knows the home in which she lives with her stepfather to be her home. She knows her stepfather and mother to be her constant caregivers and source of protection and comfort. This is the reality of this little girl's life and the context within which she has thrived.

53It is in F.N.B.'s best interests for the life she knows and has known to continue uninterrupted. Although there is no evidence to suggest that it is likely to happen now or in the future, the possible re-introduction of a father whom she does not know at this stage or at a later stage in her life would be very disruptive and potentially traumatic for the child. This cannot be in the child's best interests.

The Child's Views and Wishes, If They Can Be Reasonably Ascertained

54There was no evidence before the Court on this point.

The Child's Cultural Background

55The child's ties to her Filipino-Canadian heritage are in no danger of being severed. Her home life is rich with practices and food that have their origin in both Filipino and Canadian culture. She comes from a long line of Filipino-Canadian and will live, if adopted by the stepfather, with a Filipino-Canadian mother, a Canadian father, and two Filipino-Canadian sisters. She will also have exposure to her Filipino culture through her mother's relatives here in Canada and who are also Filipino Canadian.

The Religious Faith, if any, in Which the Child is Being Raised

56The child has been and will continue to be raised Roman Catholic.

The Effects on the Child of Delay in the Disposition of the Case

57This was not a relevant factor in this case as the case has only been ongoing since December 2014 and the child has no knowledge of the court proceedings.

Stability and Motive for Adoption

58I have also considered whether the adoption is premature. I have concluded that it is not. The mother and stepfather prudently dated for 2 years during which time they would have got to know one another quite well and established their compatibility. They have been married for almost 2 years with the biggest contentious issue between them being whether to hire a nanny. They now have a child of their union, E. Clearly they are committed to one another and are in a relationship of some permanence, a relationship that the mother describes as pretty good and stable. Further, while, it is true that the child has only resided full time with the stepfather since April 2013, her connection to him and his involvement in her life as a parental figure and consistent loving caregiver spans a five year period. Given this and all that he does with and for the child, there is no doubt that the stepfather has acted as this child's father and in the place of a parent for quite some time and with great success. The mother and stepfather's relationship as well as the stepfather's commitment to the child and the family unit is stable and likely to be of some permanence.

The evidence does not reveal any improper motive behind the stepfather's desire to adopt F.N.B. M.J.H.'s lack of involvement in this child's life is his own doing. There is no evidence to suggest that either the mother or the stepfather have done or said anything to hinder the development of such a relationship. The truth of the matter is that in July 2010, M.J.H. himself chose to abandon his rights as a parent as well as this child, fully and completely. The stepfather and the mother's motive in pursuing the adoption is solely to formalize the reality of this child's life and to provide her with all of the benefits that the adoption will afford the child.

The Child's Reality, What She Stands to Gain if Adopted and to Lose if not, and Her Overall Best Interests

59The undisputed evidence is that the father has not seen or had any contact whatsoever with the child for more than five years. He has never supported her financially or otherwise. The child is now almost 7 years old. She does not have a relationship with her biological father, or appear to have any recollection of him because of the biological father's own inaction. His only tie to her is a biological one. He is a stranger to her.

60The child has a very close and loving relationship with her stepfather. He is the only father whom the child has known. He has been involved in her life for about four years and she has lived with him for the past 2½ years. The child is also close to the stepfather's mother and father whom she sees and calls her grandparents.

61In weighing the gains and losses to the child, it is clear that the child will gain the permanence of a stable family and the preservation of her relationship with the stepfather and his family. If the order requested is granted, the child will have a secure place in a secure family unit and the order will confirm her existing family reality. Further, and most significantly, the child will have the father she deserves – one who loves her, is involved in her life, is there to protect and provide for her. The child will lose nothing from a relationship with her biological father as no such relationship exists. The possibility of developing that relationship in the future is unlikely and highly speculative and does not outweigh the substantial gains to this child by being adopted by the applicant.

62On the basis of all of the foregoing circumstances and the application of law, I find that it is in the child's best interests to dispense with the biological father's consent to the proposed adoption of the child by the stepfather.

63For all these reasons, on May 1, 2015, this Court made the following final order:

1. The consent of the biological father, M.J.H., to the adoption of F.N.B., born 2008, by K.J.K. is dispensed with.

Released: May 4, 2015

Signed: "Justice Victoria Starr"