Re Proposed Adoption of R.K.

Milton Registry No.: A13/24 Date: 2013-10-24 Citation: Re Proposed Adoption of R.K., 2013 ONCJ 701 Ontario Court of Justice

Re: Proposed Adoption of R.K.

Before: Justice Sheilagh M. O’Connell

Counsel: Ann Stoner, for the Applicants

Endorsement

IN CHAMBERS

[1] JUSTICE S.M. O’CONNELL:— The maternal grandparents wish to adopt their eighteen-year-old grandson, R.K. He has been in their custody since he was six weeks old. They obtained final custody of him pursuant to the order of Judge F. Stewart Fisher of the Ontario Court (Provincial Division) dated 11 January 1996.

[2] As R.K. is now an adult, the consent of his biological parents is not necessary. R.K.’s biological mother, the daughter of the applicant grandmother, lives in Niagara Falls, Ontario. The address and whereabouts of the biological father are unknown.

[3] The applicant grandparents wish to adopt R.K. because, according to their affidavit evidence filed, they are in fact the only parents that R.K. has ever known and there is a parental gap in R.K.’s life that needs to be filled by the applicant grandparents. They submit that it is in R.K.’s best interests that the biological relationship between R.K. and his birth parents be replaced by a new parent child relationship between R.K. and the applicants.

[4] Subsection 146(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, allows the court to make an adoption order of an adult on the application of another person. That subsection states (emphasis added):

(3) Adoption of adult, etc.— The court may make an order for the adoption of,

(a) a person eighteen years of age or more; or

on another person’s application.

[5] Subsection 137(6) of the Act requires the consent of the person to be adopted. It does not speak to the adoption of a child but rather “the adoption of a person who is seven years of age or more” and therefore, applies to the adoption of an adult person. It would not make sense that an adult could be adopted by another person against his or her will or without the consent of the adult.

[6] In addition, subsection 152(4) of the Act states the following (emphasis added):

(4) Participation of adult, etc.— Where an application is made for an order for the adoption of a person under subsection 146(3), the court shall consider the person’s views and wishes and, on request, hear the person.

[7] This section is not discretionary but mandatory. Other than this section, the Child and Family Services Act does not explicitly set forth factors that the court should consider in the exercise of its discretion to grant an order for an adult adoption. The leading case is Re Proposed Adoption of April Laura Kathleen Q., 1996 CanLII 4748, 60 A.C.W.S. (3d) 983, 7 W.D.C.P. (2d) 116, [1996] W.D.F.L. 875, 9 O.F.L.R. 186, [1996] O.J. No. 353, 1996 CarswellOnt 353 (Ont. Prov. Div.), by Provincial Judge Heather L. Katarynych. Although citing a number of factors, Judge Katarynych held that “pivotal of the adjudication of an adult adoption” is the psychological and emotional need of the proposed adoptee for a new parent or for a parent to fill a gap for one he or she had never had or known [paragraph 15].

[8] In my view, in order for the adoption to proceed, I will need R.K.’s informed consent to this adoption, pursuant to subsections 137(6) and 137(7) of the Act. The legal effect of this adoption will be that R.K.’s mother, will, in law, become his sister. After carefully reviewing the application record, I could find no evidence of R.K.’s views or preferences, his understanding or consent to his adoption by his grandparents, which is required in law.

[9] Unfortunately, the closest court form to meet this need is Form 34 (Child’s Consent to Adoption), which refers only to a “child” and therefore, some variant of Form 34 would have to be designed under the authority of subrule 1(9.1) of the Family Law Rules. Alternatively, I will accept some other sworn evidence on the issues.

Justice Sheilagh M. O’Connell

Date: 24 October 2013