Ontario Court of Justice

Date: 2023 03 16 Court File No.: A34/22

Between:

P.L. Applicant

— AND —

J.C. Respondent

Before: Justice K.A. Baker

Heard in Chambers: December 13, 2022 Reasons for Judgment released on: March 16, 2023

Counsel: Jason Timms, for the applicant(s)

BAKER, J.:

Judgment

[1]

Judgment

L. is a seven year-old boy. His stepfather, P.L has applied to adopt him. Consents have been signed by L.’s biological father, J.C., and his mother, J.L.

2L.’s date of birth is […], 2015. The application was issued on September 27, 2022, eight days after L.’s seventh birthday. There is no consent by L. filed with the application, as required by section 180(6) of the Child, Youth and Family Services Act. The Applicant sought to dispense with L.’s consent to the adoption, pursuant to section 180(9) of the Act.

3That provision permits a court to dispense with a child’s consent where the court is satisfied that:

(a) Obtaining the consent would cause the person emotional harm; or

(b) The person is not able to consent because of a developmental disability.

4The Applicant contends that both criteria apply to L. This is because L. has been diagnosed with Autism, Self-regulation delay and ADHD. In his original materials for the adoption, the Applicant deposes that L. is, “unable to provide his consent to this adoption as he is unable to understand and comprehend what this process entails”. L.’s mother reiterates this statement in her original affidavit in support of the application.

5Mr. P.L. and Mrs. J.L. also depose that L. does not have a relationship with his biological father and has always known the Applicant as his “Dad”. In their original materials, both say that L. would be “confused” if told otherwise.

6A letter from Dr. Gregory Knoll dated September 9, 2022, was also submitted in support of the request to dispense with L.’s consent. In it, Dr. Knoll opines that L. is “unable to provide his own consent to the adoption process”.

7The letter goes on to state:

“In March of 2022, I assessed L. and diagnosed him with autism spectrum disorder (ASD, level 1 with anxiety) and ADHD, Combined Presentation. Subsequently I have been treating him with regular Cognitive Behavioural Therapy (CBT). Given his age and the limitations imposed by his ASD, it is my professional opinion that L. does not have the capacity to provide consent in this situation.

Additionally, and according to our clinical records, P.L. (the Applicant) has been L.’s father and resided with him since age two months. L. is unaware that P.L. is not his biological father and therefore, careful consideration must be given to this case.”

8I declined to deal with the issue in the absence of a formal application to dispense with consent and directed a hearing. This was conducted on December 13, 2022. Dr. Knoll attended remotely. The Applicant sought to qualify Dr. Knoll as an expert in psychological diagnosis of children, determination of intellectual capacity in relation to providing consent and whether a child would suffer emotional harm if he was to discover that the individual he has known all his life as a parental figure, is not, in fact, his biological father.

9During the course of the voir dire, Dr. Knoll conceded that he did not have any kind of specialized knowledge or training that would permit him to offer an opinion about a child’s ability intellectually or otherwise to give consent to an adoption. Ultimately, Dr. Knoll was qualified to give opinion evidence in the field of clinical psychology of children only.

10Dr. Knoll testified that individuals with Autism Spectrum Disorder exhibit an “adherence to sameness.” Accordingly, children on the spectrum struggle to deal with changes both big and small. Changes exacerbates symptoms and the individual will typically have communication issues, social issues, sensory issues and there can be a hyperfocus on preoccupations. Dr. Knoll went on to note that L. currently has a predictable routine and structure and that if that were to change, he could regress with respect to his social and emotional issues. This could include enuresis and encopresis, and language regression such as the use of, ‘baby talk’.

11The following interchange then occurred:

Mr. Timms (counsel for the Applicant): Q. “Okay in your professional opinion do you believe that a discovery of such in this matter where he would find out that his father is not his biological father, would put him into a state of regression?

A. I can’t say for sure.

Q. Okay, do you believe it would cause him emotional harm?

A. I think there would be a period of shock and there would be a period of required adjustment.

Q. There is also a possibility that he could enter into that state of regression with no end at the tunnel per se in sight. That would be a possibility?

A. Well, no, the regressions, I guess only last through certain developmental period and then they would slowly move forward and begin to process again.”

12Counsel then went on to ask:

Q. And this change in the child’s norm being that he would find out that his father is not truly his biological father, do you believe that would be a significant change for the child?

A. It may be psychologically, conceptually. It’s tough to say with certainty, right, the impact that would have. It’s all relative. He still has two loving parents at the end of the meeting.”

13Dr. Knoll also noted that the manner in which L. learned that the Applicant is not his biological father would be important. If he learned of it through a court proceeding, it would be, “very stressful”. However, “if he found out throughout the duration of a few therapy sessions in a safe environment, the reactions could be quite variable”.

14L. was described as “quite bright” with a verbal intelligence at the 50th percentile. He is, however, very concrete and literal. Accordingly, he would have difficulty comprehending abstract concepts like consent and adoption.

15P.L. testified and described L.’s difficulties with change in any form. Even minor changes, for example to lunchbox contents, can trigger considerable disruption and can become aggressive, particularly to himself. In response to leading questions on the point, J.L. agreed that revelation of the Applicant’s actual status would have, “a significant impact” on him. She then went on to opine that learning this information would, “destroy” him (L.).

16The court then referenced Dr. Knoll’s testimony, and asked J.L. the following question:

Q. “So from your answer, it sounded like you might agree that if the information was conveyed to L. in such a way that it was a therapeutic process, it might not cause him emotional harm. Do I have that correct?

A. Correct.

17In response to follow up, leading questions from counsel, J.L. commented that she believed L. would be “devastated” by being informed of the actual situation and that that risk was “high”.

18The Applicant then testified and again, in response to leading questions, opined that revelation of the actual situation would be “pretty detrimental”.

19The Applicant provided a Factum and book of authorities in relation to the issue. A number of the cases provided were premised upon a different legislative test and were of little assistance. These included R. v. V.H., 1984 ONCJ 1714, 47 O.R. (2d) 272, Re: R; Re Adoption No 62-09-004016 (British Columbia Supreme Court), and in the matter of the adoption of “A” No. 23/80 of Frontenac County.

20Children’s Aid Society of London and Middlesex (Re), 2010 ONSC 1348 was decided under the current legislative test. The court had been asked to dispense with consent to adoption for a seven-year-old child, who had been diagnosed with ADHD and was suspected of being afflicted with Fetal Alcohol Spectrum disorder. Campbell, J concluded that the threshold for dispensing with the child’s consent under the legislation was “very high”. The court found that the legislative test had not been met. (Ultimately the court found that the child had expressed “consent” in an informal manner and exercised its parens patriae jurisdiction to make that declaration and allow the adoption to proceed.)

21This court has no parens patriae jurisdiction.

22A.C. and V.A., 2012 ONCJ 7 was also decided under the current test. It discussed the evidence required to demonstrate “emotional harm” and found that evidence to support such a finding must be proffered by those skilled in making such determinations, for example, psychiatrists or psychologists. Phillips, J went on to comment about the danger of relying upon the evidence of prospective adoptive applicants, noting “Denying the child notice and subsequent participation in the adoption proceeding may permit adoption applicants to hide from the child embarrassing facts about themselves that would perhaps surface in the course of an adoption hearing. Applicants in such circumstances may be inclined to marshal their facts in such a way that any disclosure of their ‘secrets’ would be portrayed as an event that could psychologically unhinge the child.”

23Phillips, J concluded that “the court must guard against the convenience of allowing the motion, and its duty is to determine whether the applicant’s concerns are self-serving or whether the child’s emotional health is truly at stake.” In that case, the consent of the child was required.

24The Applicant notes that in D.S. Re, 2001 ONSC 28177, the court addressed the issue of precisely what evidence is necessary to find a risk of emotional harm. Linhares de Sousa, J stated:

“It seems logical to me that, given the nature of the listed conditions and behaviours found in s. 37(2)(f) (the then applicable section dealing with the definition of emotional harm) demonstrating emotional harm, some expert evidence from a qualified mental health professional or child development specialist might be required to prove the conditions or behaviours and their serious quality in many instances. For example, depression is a clinical or psychiatric diagnosis and therefore requires the evidence of an expert. Developmental delay to a point may be another example… A competent and appropriate caregiver may also be a very reliable witness to the serious aggressive or self-destructive behaviour of a child without being a qualified mental health expert. (my emphasis)”

25The Applicant relies on this portion of the judgment to support his contention that the court should rely heavily on the evidence of Mr. P.L. and Mrs. J.L. with respect to the risk of emotional harm by way of regression or self-destructive behaviour.

26It is however important to put that comment in context. The court in that case was determining whether the children should be found in need of protection due to the risk of emotional harm. The comment was obiter. The court was not ruling on the admissibility or reliability of evidence from a parent about the child’s behavior. The court found risk of emotional harm based on extensive interest from a number of witnesses, including child protection workers and police. There was also evidence from two physicians, one of whom was qualified to give expert evidence in child psychology and attachment behaviour.

27It would be a considerable stretch to interpret this single sentence as support for the notion that the court can (or should) rely largely upon evidence from a parent interested in the outcome to find risk of emotional harm.

28Moreover, as Phillips, J noted in A.C. v V.A., the cases in which non expert opinion from a parent about emotional harm are dated, and since their reporting, Canada has ratified the United Nations Convention on the Rights of the Child.

Analysis

[29]

Analysis

My analysis in this matter is as follows:

30The evidence that L. lacks the capacity to consent to the adoption is equivocal. Although Dr. Knoll, in his initial ‘opinion’ letter, concludes that L. lacks capacity to consent, he subsequently conceded that he lacked the expertise to opine on that point. His initial opinion then, is of no weight.

31It is significant that Dr. Knoll described L. as “quite bright” and said his verbal intelligence was at the 50th percentile. He went on to say L. was “slow” to process information. He did not say L. was incapable of doing so. He said it would be “hard” for L. to comprehend abstract concepts such consent and adoption. He did not say he would be incapable of doing so.

32The Applicant and the child’s mother have both expressed the view that L. lacks capacity to consent. Both used precisely the same wording for this conclusion, which was expressed in their initial affidavits in a rather formulaic fashion. They do not set out any basis for this belief. Neither refuted Dr. Knoll’s characterization of L. as “quite bright”.

33Neither of these witnesses expanded on their evidence about L.’s capacity to consent in their evidence in chief at the hearing. In response to a question from the court as to why she made the decision in the first place not to inform L. of his biological father, Mrs. J.L. said, “To be honest I just didn’t think he would understand”. She then went on to describe the biological father in pejorative terms. She went on to say that she was so focused on L.’s struggles at the time and that she did not think it was something that she could fully explain. She also went on to say that she had not “factor(ed) (the biological father) into any part of “our life or L.’s life”.

34It is very clear that the Applicant and Mrs. J.L. are anxious to provide L. with the stability and security that adoption would provide. This motivation, while perfectly understandable, must be factored into any assessment of the reliability of their evidence.

35There is little doubt that because of his challenges, L. will have a more difficult time than most seven-year-old children in understanding the concepts of adoption and consent to adoption. I cannot however say on this evidence, that he lacks capacity to consent.

36The test at section 180(9) of the Act is disjunctive. The court must therefore go on to assess whether the Applicant has demonstrated on a balance of probabilities that L. would suffer emotional harm should his consent to the adoption be sought.

37A good place to start is the definition of ‘emotional harm’. As noted by Phillips, J in A.C., emotional harm is not defined in Part VII (adoption), but it is specified in section 74(2) of the Act as follows:

the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

38The Applicant says that L. is at risk of developing serious anxiety, aggressive or self-destructive behaviour or delayed development should his consent be sought.

39The Merriam-Webster dictionary defines “serious” as, “excessive or impressive in quality, quantity, extent, or degree”.

40Has the Applicant demonstrated that L. will suffer serious anxiety should his consent be sought? Certainly, there is evidence that L. is likely to experience some anxiety as a result of learning that the Applicant is not his biological father. There was however nothing in Dr. Knoll’s evidence to support that this would be likely to suffer serious anxiety if the news that Mr. P.L. is not his biological father was given to him in a sensitive and child-focused manner.

41Neither the Applicant nor Mrs. J.L. gave evidence specific to the issue of anxiety. Their affidavit evidence was that L. would be “confused” by the revelation resulting from his consent being sought.

42On the issue of possible regression, Dr. Knoll’s evidence was largely speculative. Dr. Knoll again emphasized that the manner in which the information was provided would be important. Providing this information in a sensitive and therapeutic environment would be far less likely to cause L. distress.

43Initially, when asked about this evidence, Mrs. J.L. agreed that such a process might not cause L. emotional distress. Her responses to leading questions suggesting that such a revelation would in fact cause L. emotional distress and cause regression must be discounted. This is especially true given her strong, and again, understandable motivation, to have the adoption concluded. The same is true of the Applicant’s evidence.

44When questioned further on the issue of possible regression, Dr. Knoll said that L. “could” regress with respect to his social and emotional issues should the predictableness of his life change. He was unable to say how long this would go on for. He candidly acknowledged that he could not say with any certainty if finding out that Mr. P.L. is not his father would cause L. to regress. He did say that in the event L. was to regress, it would only last, “through certain developmental period and then slowly move forward and begin to progress again”.

45There is also the fact that, at one point in her testimony, Mrs. J.L. commented, “I think I would never deny him this information (the fact that Mr. P.L. is not his biological father) one day.” Mrs. J.L. did not say precisely what would have to change in order for her to provide this information. She did imply that this might occur when L. is older. This suggests that Mrs. J.L. considers that L. should know the truth and that there might be a way to convey it to him, despite his challenges, without causing him distress.

46The threshold to dispense with the consent to adoption for a child over seven years is high. This is for good reason. Children should be involved in the decisions that are made in relation to them. That is why the Legislature amended the Child, Youth and Family Services Act to require that as the first criteria in determining best interests, courts must consider the child’s views and wishes, and ensure they are given due weight, in accordance with the child’s age and maturity, unless they cannot be ascertained.

47Canada is a signatory to the United Nations Convention on the Rights of the Child, which provides that children should be given the opportunity to be heard directly. Where a child is heard indirectly, there must be no conflict of interest on the part of the child's representative. While I am not suggesting that there is a conflict of interest on the part of the Applicant and Mrs. J.L., their interest in an uncomplicated completion of the adoption must be considered in assessing their objectivity in giving their evidence about L.’s capacity and the effect of being asked for consent.

48While the application materials are compelling on the prospective merits of L.’s adoption by the Applicant, I am not persuaded that the evidence meets the stringent requirements imposed by the legislation to dispense with the child’s consent.

[49]

Order

Order to go as follows:

1. The application to dispense with the subject child’s consent to the adoption is dismissed.
2. The Adoption application shall be held by the court for 60 days. In the event that the child’s consent is not filed within that time, or a motion to further defer the application is not received and granted, it shall be marked as dismissed for want of prosecution.

Released: March 16, 2023 Signed: Justice K.A. Baker