Court File and Parties

Court File Number: A52-17

Ontario Court of Justice

Court Office Address: 47 Sheppard Ave. E, Toronto, Ontario

Date: February 5, 2018

Endorsement Justice: C.J. Jones

Parties

Applicants: K.F. and M.D.C.-H.

Counsel for Applicants: Toni E. Wharton, Mills & Mills LLP

Respondent: A.M.S.

Order to go in accordance with minutes of settlement or consent filed.

Introduction

[1] This is a 14B Motion made by the applicants in the context of an Application to Dispense with a Parent's Consent to Adoption (referred to as "the application") which they have filed with this court. The applicants, K.F. (referred to as "K.") and M.D.C.-H. (referred to as "M.") are husband and wife. K. is the mother of the child, A.M.J.S.C.-H., born [deleted], 2003, (referred to as "the child" or as "A."). The respondent, A.M.S., is A.'s biological father.

[2] In their application, the applicants seek to dispense with the respondent's consent to the proposed adoption of A. by M. Their claim is made pursuant to section 138 of the Child and Family Services Act (also referred to as "the Act").

[3] In their affidavit filed in support of the 14B motion, the applicants indicate that if their application is granted, they intend to proceed with an Adoption Application for the adoption of the child. The intended adoption would be a family adoption.

Relief Sought in the 14B Motion

[4] In their 14B motion, the applicants are seeking the following Orders:

1. An Order that notice of the 14B motion need not be given to the respondent prior to the adjudication of the issues raised therein;

2. An Order for directions from the court permitting an application pursuant to section 138 of the Child and Family Services Act to dispense with the consent of the respondent to the adoption of the child, with the application to proceed under Rule 34(16) despite the fact that the proposed adoption is a family adoption, which does not involve the formal placement of the child for adoption.

3. An Order for directions clarifying the materials required to be served on the respondent in order to satisfy section 138(b) of the Child and Family Services Act.

4. An Order pursuant to Rule 6(15) of the Family Law Rules (referred to as "the Rules"), for substituted service of the application and accompanying documents on the respondent by e-mail; and

5. An Order scheduling a date for a case conference in the application.

Hearing of the 14B Motion Without Notice

[5] In their 14B motion, the applicants are seeking directions from the court in relation to the application. As the claims made by the applicants in their 14B motion are for directions pertaining to preliminary procedural and service issues, service of notice of the 14B motion on the respondent is unnecessary, as per Rule 14(12)(a) of the Family Law Rules.

Procedure to be Followed for the Application

[6] Section 138(b) of the Child and Family Services Act relates to an application to dispense with a required consent to the adoption of a child. Rule 34(16) of the Rules sets out a process to be followed for such an application, although the Rule refers to the application being made before placement of a child for adoption. The reference in the Rule to "placement" is more apt when the proposed adoption is an adoption placement through a society or licencee, rather than a family adoption where there is generally no formal placement of the child for adoption. Nevertheless, an application under Rule 34(16) has long been accepted as the appropriate procedure to be utilized in either case. It is not necessary to obtain directions from the court permitting such an application to be made, when this is expressly contemplated by statute. Neither is it necessary to obtain directions from the court confirming that the application will proceed in the manner set out in Rule 34(16), given the prior jurisprudence that endorses this approach.

[7] In relation to the Form to be used for the application, Rule 1(9.1) of the Family Law Rules provides that the forms authorized by the Rules may be adjusted as needed to fit the situation. Therefore, minor amendments to Form 8D.1 may be made to avoid confusion. Specifically, the form may be amended in the title to remove the words: "Before Placement", in the case of a proposed family adoption. The court notes that this amendment has already been made to the Form 8D.1 prepared and signed by the applicants.

[8] Sub-sections 137(2) and section 138 of the Child and Family Services Act provide as follows:

Consent of parent, etc.

(2) An order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control, shall not be made without,

(a) the written consent of every parent; or

(b) where the child has been made a Crown ward under Part III (Child Protection), the written consent of a Director.

Dispensing with consent

138. 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.

[9] The applicants propose that the respondent should be served with the court documentation referred to in paragraph 3 of their 14B motion, namely:

1. The Application to Dispense with a Parent's Consent to Adoption (Form 8D.1);

2. The supporting affidavits of the applicants sworn November 13, 2017, filed in support of the application (at Volume 1, Tabs 2 and 3 of the continuing record);

3. This 14B motion; and

4. This endorsement and the corresponding Order.

[10] Page 1 of the application (Form 8D.1) makes reference to a blank copy of an Answer, as an accompanying document to be served on the respondent. On the same page, directions are provided for the filing of the Answer with the court along with an affidavit of service, should the respondent wish to respond. While the reference is to a blank Answer in Form 10, that document is intended to respond to claims made under the Family Law Act and Children's Law Reform Act. Claims under those statutes are not being raised in this case. Rather, the application before the court seeks to dispense with the respondent's consent to the adoption of the child, and is brought pursuant to section 138 of the Child and Family Services Act. The blank form of Answer that accompanies the application should be an Answer in Form 33B.2, a copy of which is attached. The best practices approach would be to also include a blank affidavit of service – Form 6B, among the documents to be served on the respondent.

[11] In the application, the onus is on the applicants to prove that the two-part test set out in section 138(a) and (b) of the Act, has been met. In relation to the second branch of the test, referenced in section 138(b), the documents referred to in paragraphs 1 to 4 above, and specifically M.'s affidavit sworn November 13, 2017, state that M. intends to bring an Adoption Application pursuant to the Act, seeking to adopt A. His affidavit also details the efforts that he and K. have made to attempt to obtain the Consent of the respondent to the adoption, in a form that would satisfy the requirements of the Act and the Family Law Rules. The statutory requirements include the necessity that the respondent obtain independent legal advice prior to signing the Consent. M.'s affidavit makes it clear that, as the efforts made by the applicants have not been successful, he intends to seek an Order of the court to dispense with the respondent's consent to the adoption.

[12] It is the responsibility of a party or his/her counsel to ensure that the content of his/her court documents set out the foundation for any claims raised in a proceeding and that any statutory requirements for such claims have been addressed. The court does not generally pre-approve the content of a party's documents or rule in advance on the issue of whether a party's pleadings are adequate to satisfy the legal requirements of the applicable statute or Rule. If this becomes an issue in a contested proceeding, the court would wish to receive submissions on the issue from all parties.

[13] Similarly, the court does not generally provide directions to a party, at the outset of a proceeding, to identify the documents to be served on a responding party. Guidance is set out in the Family Law Rules and in the applicable statute, in this case, Rule 34(16) and the Child and Family Services Act. The process set out in Rule 34(16) for this application should be followed. The appropriate documents to be served upon the respondent are the documents referred to in paragraphs 1 to 4 above, along with the blank Answer in Form 33B.2 and blank affidavit of service.

Service

[14] In relation to the issue of service, the applicants seek an Order permitting service of the application and accompanying documents upon the respondent by e-mail. The application and supporting affidavits comprise over 45 pages in total.

[15] In their affidavit evidence filed in support of the Form 14B motion, the applicants indicate that the respondent resides outside of Canada, in [deleted], Florida, U.S.A. The address and whereabouts of the respondent in Florida are known to the applicants. No efforts have been made, thus far, to serve the respondent with the application and accompanying documents.

[16] An application is an originating document, in the sense that it is a document that commences a claim. Pursuant to Rule 8(5), service of an application upon a respondent is to be made by special service. Rule 6(3) sets out the various means by which special service may be effected. The most commonly used option is by leaving a copy of the document with the person to be served.

[17] Rule 6(15) of the Family Law Rules sets out the legal test that must be met by a party seeking an Order for substituted service. The test is a two-part test. Firstly, the party is to provide detailed evidence showing the steps that have been taken to locate the person to be served and the steps that have been taken to serve the documents on that person. The second branch of the test requires the moving party to show that the suggested method of service could reasonably be expected to bring the documents to the person's attention. If no steps have yet been taken to serve the respondent, the first branch of the test has not been satisfied, and the inquiry goes no further. It would be premature to consider whether the second part of the test has been met. Thus, an order for substituted service is not appropriate in this case, as no efforts have been made to effect special service of the documents upon the respondent.

[18] Furthermore, this case involves a respondent who resides outside of Canada. The Ontario Divisional Court has held that the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (referred to as "the Hague Service Convention") applies to service of court documents in family law matters. In the Wang v. Lin decision, specific reference was made to the Handbook on the Operation of the Hague Service Convention, produced by the Hague Conference, which explains that the Hague Service Convention applies to the service of documents internationally between contracting states in family law matters including service of documents related to "Consents for Adoption."

[19] The applicants have the option of forwarding the documents to the Central Authority in the U.S.A., or utilizing a private process server in Florida, U.S.A. to effect prompt personal service of the application and accompanying documents upon the respondent. Delivering the documents to the respondent would also be valid special service of the documents under the Family Law Rules. If a process server will be used, then if possible, the applicants should provide a photograph of the respondent to the Florida process server, along the details of his name and address, to assist the process server in identifying the respondent. Assuming service upon the respondent is made successfully, an affidavit of service should be requested from the Florida process server.

[20] If the applicants encounter difficulties in effecting prompt service of their documents upon the respondent via a process server in Florida, a further 14B motion regarding service may be made, supported by further up-dated evidence.

Return Date of the Application

[21] As the application and accompanying documents are to be served on the respondent, the application (Form 8D.1) should bear a return date. This is consistent with Rule 8(4), which requires that, unless the case falls within the specified exception, upon receiving an application for filing with the court, the clerk of the court is to set a court date. If the application is not served on the respondent prior to the court date, the applicants should follow the process set out in Rule 8(11) of the Family Law Rules, to request that the clerk set a new court date. The applicants would then be required to make the necessary change on the face of the application to reflect the new date, prior to serving the respondent.

[22] The applicants request that a case conference date be set. While this court recognizes that local practice may differ at various court locations, it is the view of this court that it would be premature to set a case conference date, until it is known whether the application will be opposed. On the first return date, the attendance will be before a judge. Pursuant to Rule 40(2)(c) of the Family Law Rules, the requirement of an attendance before the first appearance clerk does not apply to cases under the Child and Family Services Act. The steps to be accomplished on the first return date will depend upon whether a response is filed, or whether the application is unopposed and the respondent does not attend court. In the former case, it is likely that a conference would then be scheduled, while in the latter event, the applicants may request that the application proceed to an undefended hearing based upon the evidence filed.

Order

[23] Therefore, the court makes the following Order:

1. Leave of the court is not required for the filing of an Application to Dispense with a Parent's Consent to Adoption (Form 8D.1), by the applicants seeking to dispense with the consent of the respondent to the proposed adoption of the child, A.M.S.J.C.-H., born [deleted], 2003, nor is leave of the court required to confirm that the case will proceed in the manner contemplated by Rule 34(16) of the Family Law Rules (referred to as "the Rules").

2. The motion made by the applicants for an Order permitting substituted service of the application and accompanying documents upon the respondent is dismissed.

3. A copy of this Order and the Endorsement are to be served upon the respondent, along with a copy of the Application to Dispense with a Parent's Consent to Adoption (Form 8D.1), the affidavit evidence upon which the applicants rely in support of the application, the Form 14B motion dated November 28, 2017, a blank Answer in Form 33B.2 and a blank Affidavit of Service (Form 6B). Service is to be effected in accordance with the Family Law Rules and any applicable statute or rule of law.

COURT ADMINISTRATION IS DIRECTED TO ISSUE THE APPLICATION AND TO INSERT A COURT RETURN DATE ON PAGE 1 OF THE APPLICATION. A COURT DATE MAY BE SELECTED, RETURNABLE AT 9:30 A.M., ON ANY AVAILABLE DATE WHEN THE COURT IS HEARING CASES UNDER THE CHILD AND FAMILY SERVICES ACT. THE COURT DATE SHOULD ALLOW SUFFICIENT TIME FOR SERVICE UPON THE RESPONDENT AND FOR THE STATUTORY TIME-PERIOD FOR THE FILING OF A RESPONSE TO EXPIRE.

Justice C.J. Jones