Court File and Parties
Ontario Court of Justice (Family Court at Orangeville)
In the Matter of the Proposed Adoption of KAG
And in the Matter of a Motion by RFT, Proposed Adoptive Parent
Heard in Chambers on November 2nd, 2015
No parties appeared
Justice: B. E. Pugsley
Decision
[1]
Background
RFT wants to adopt KAG, the adult child of his wife.
[2] RFT is 71 years of age and KAG is 48 years of age. They have known each other for 21 years, since the child was roughly 27 years of age.
[3] KAG wants to be adopted by RFT and RFT's wife also consents.
[4] KAG's natural father has not been a feature of her life for many years. RFT seeks to have his consent dispensed with.
[5] RFT resides in Newfoundland and Labrador. Before he retired at some unstated date, he lived in Ontario, and worked for an automobile manufacturer in this province.
[6] KAG resides in Orangeville, Ontario.
[7] The court administration has refused to accept the adoption application because the parties do not both reside in Ontario.
[8]
The Motion
RFT moves on an ex parte basis in Chambers for an order: (a) directing the court administration to accept his application to adopt KAG, and (b) dispensing with the consent of KAG's natural father.
[9] The proposed adoptive step-parent notes that section 146 of the Child and Family Services Act RSO 1990, allows an adult child to be adopted. He also notes that section 150 of the Act states that the place of hearing of an adoption application allows the hearing to take place in the county where the person to be adopted resides. Finally, he relies on Rule 5 of the Family Law Rules which provides guidance for where an application may be commenced. Both RFT and KAG agree that the application should be started in Orangeville, Ontario, and seek the court's permission in advance for that to take place should that be needed.
[10] Caselaw relating to the merits of the proposed adoption has been provided by RFT in a factum to assist the court.
[11]
Analysis
The difficulty faced by the parties here however is not on the merits per se but rather whether the court has any jurisdiction to make the adoption order here at all. While RFT cites the language of section 146 in his factum, he omits in the extract of section 146 that he has provided at Tab 1, the fatal subsection:
146 (5): RESIDENCY REQUIREMENT – The court shall not make an order under this section for the adoption of, or on the application of, a person who is not a resident of Ontario. [emphasis added]
[12] While at some time before his retirement (I assume quite a while ago given that he is now 71 years old) RFT did indeed reside in Ontario, and still visits from time to time, he no longer resides in the province. The court is therefore prohibited by the mandatory wording of subsection 146 (5) of the Act from making an adoption order here, even if such an order passed muster on the merits.
[13] The choice of venue legislation within the Act and the Rules can only apply after the gatekeeper function of subsection 146 (5) has been complied with.
[14] Without in any way opining on the merits of the proposed adoption, I am compelled by the firm wording of subsection 146 (5) of the Child and Family Services Act to find that this court has no jurisdiction to make the order for adoption sought here.
[15]
Disposition
The motion by RFT is dismissed and the refusal of the court administration to accept his application is confirmed.
November 2nd, 2015
Justice Bruce E. Pugsley
Ontario Court of Justice at Orangeville