Court File and Parties

Ontario Court of Justice

Date: 2015-05-05

Court File No.: Goderich D84/2014

Between:

T.L.I., D.J.B. and K.D.A. Applicants

— And —

J.E.P. Respondent

Before: Justice Brophy

Heard on: 24 March 2015

Reasons for Judgment released on: 5 May 2015

Counsel

Jenn M. McMillan — counsel for the applicants T.L.I. and D.J.B.

Matthew E. Armstrong — counsel for the respondent J.E.P.

No appearance by or on behalf of K.D.A., even though served with notice

BROPHY J.:

INTRODUCTION

[1] This is an application to dispense with the respondent's consent for the applicants' proposed adoption of the child W.V.S.B., born […], 2009.

[2] The application was heard on 24 March 2015 at a one-day hearing.

[3] The applicant, T.L.I., is the child W.V.S.B.'s maternal grandmother and the applicant, D.J.B., is the child's grandfather by his marriage to T.L.I.

[4] The applicant, K.D.A., is the child's biological mother. She is consenting to the proposed adoption.

[5] The respondent, J.E.P., is the biological father of the child and he is opposed to the proposed adoption and does not wish to provide his consent.

[6] At the hearing of this matter evidence on behalf of the applicants was received in affidavit form together with viva voce evidence from the two main applicants. The evidence of the respondent was received viva voce only. Notwithstanding the encouragement and direction of the court, counsel for the respondent was unable to obtain instructions with respect to the preparation and filing of an affidavit.

[7] The applicant T.L.I. has been caring for the child since birth and has custody of the child W.V.S.B. pursuant to a section 57.1 order under the Child and Family Services Act, R.S.O. 1990, c. 11, as amended, made 23 September 2011 in Kirkland Lake by Justice Rocheleau of the Ontario Court of Justice. The applicant, D.J.B., has been married to T.L.I. since 2009 and has been caring for the child since birth as well. On 8 April 2014 an order was made by this court providing that the applicant D.J.B. would have joint custody of the child along with T.L.I. This order was made on consent.

ISSUES

[8] The theory of the applicant's case is that the child has lived with the grandparents since birth and is now approximately five years of age and needs permanency. The parents have never been in a caregiving role with respect to the child and the respondent J.E.P. is not in a position to offer any home or support to the child. The applicants say that the child should be provided with the stability and certainty of an adoption.

[9] The respondent takes the position that the refreshed order of 8 April 2014 provided for access to the respondent father and that the commencement of this Application on 26 September 2014 did not allow enough time for him to be able to exercise access and develop a relationship with the child. Hence he argues that it is not in the best interests of the child to remove him as a parent and to do so would be premature.

FACTS

[10] The evidence called by the applicants is that the child was received by them into their home as an infant. The child was apprehended from the hospital and has never lived with the parents. The applicants have provided a stable and loving home for W.V.S.B. and she is happy and healthy. She attends school and participates in community activities.

[11] The evidence establishes that the child is doing well in the grandparent's home and that the grandparents are devoted to the well-being of W.V.S.B.

[12] In the evidence there was some concern expressed with respect to the number of times that the applicant T.L.I. attended in Kirkland Lake where the respondent father resides and where the child was born. T.L.I. says that her father and mother lived in Kirkland Lake, although her mother has now passed away and her father is thinking about moving south, and that is the main reason why she would travel to that area. She otherwise has no reason to be in Kirkland Lake. In any event no efforts were made by the respondent to connect with her in advance of her travels to Kirkland Lake. He made no attempts to inquire as to what her plans were.

[13] The evidence of T.L.I. is that she rarely receives calls from J.E.P., notwithstanding that he has phone numbers and other ways in which to contact her. He does nothing to arrange access and indeed historically has been resistant to access if T.L.I. is going to be involved.

[14] In 2014 she attended four times in Kirkland Lake. On one occasion to visit with her mother prior to her death. On another occasion when she visited to spend time with her family after her mother passed away. She also was there in December 2014 for a few days after Christmas to visit with her father and other family members. Finally she went to Kirkland Lake two weeks prior to the hearing to visit with her father. This all seems very ordinary in terms of what her reasons for travel were and the number of times she went north.

[15] It should be noted that T.L.I. confirms that J.E.P. provides no child support and does not contact W.V.S.B. with respect to birthdays or Christmas.

[16] The evidence that I have received with respect to J.E.P.'s circumstances is discouraging. He is 26 years old and lives in a building with his mother. He has a limited education, no employment and subsists on an ODSP income. He explains his difficulty in terms of instructing his lawyer, preparing an affidavit, contacting the grandparents and otherwise responding to the case as a product of his inability to read. He has no transportation available to him and cannot afford to purchase transportation to bring him to southern Ontario to visit W.V.S.B. The respondent father has a criminal record both as a youth and as an adult.

[17] He has exercised almost no access, save and except when the child was first governed by a Children's Aid Society order. He had approximately eight actual visits facilitated or supervised by the CAS from 30 December 2009 to 23 September 2011. In that period there were also many missed visits where the respondent failed to show up. From 23 September 2011 to 8 April 2014 he had only one visit for approximately one half hour at Easter in 2012. This visit was supposed to be with his mother and her partner and the child, but the respondent "crashed" the visit. From 8 April 2014 to the time of the hearing on 24 March 2015 there were no visits at all. The net result is that from the time the child was 21 months old to five years and three months old the respondent father had seen W.V.S.B. only once for approximately a one half hour visit.

[18] The basic explanation offered by the respondent father with respect to his lack of access is that he could not afford transportation, he did not know how to communicate with the applicant grandparents, and in any event the applicant grandparents were hostile to him and would not promote or facilitate access, especially when they were visiting in the Kirkland Lake area.

[19] I find that the complaint of J.E.P. with respect to his inability to travel to be of no value in terms of the decision that has to be made in this case. The inability to afford transportation is a reality that is directly related to the circumstances of the respondent father. The fact that he cannot arrange transportation is not a reason to not make a decision that is in the best interests of the child. I also find that with any ordinary determination, the location and contact information for the applicant grandparents would be easily available to the father. I have the evidence of T.L.I. that she did provide appropriate telephone contacts and in my view the father simply found it too difficult for him to follow up on that information because of his literacy issues compounded by oppositional characteristics. Finally with respect to the alleged hostility of the applicant grandparents, I find no basis for that in the evidence I have received, other than in the mind and personality of the father. In their viva voce evidence and in their affidavit material the grandparents indicate they were not opposed to communication with the father and simply wanted him to take responsibility for his own actions and to behave in a calm and respectful manner. It should be noted that their evidence is that even post adoption they are prepared to entertain overtures by J.E.P. with respect to continuing contact.

[20] With respect to the argument made that the order of 8 April 2014 anticipated that there would be access by the respondent father and that there has not been sufficient time to allow that access to develop, simply put the problem is that J.E.P. has done nothing to promote access and to arrange same. His difficulties and limitations continued after 8 April 2014 and have not improved at all. At the time of hearing of this matter it was approximately one year since that order was made and J.E.P. has done nothing that advances the matter in terms of promoting access.

[21] J.E.P.'s plan, as advanced in his testimony, is that there should be a "couple" of visits in a public restaurant and that eventually the child could stay with him on weekends and in the long term he should be able to raise W.V.S.B. This plan is completely unrealistic and does not address the needs of the child. It is optimism taken to the extreme. There is no evidence before the court that J.E.P. is stable, that he can offer the child a safe place to reside, or that he can nurture the child in any reasonable manner. These are hard and unfortunate facts, but they describe J.E.P.'s situation.

ANALYSIS

[22] Counsel for the applicant grandparents have provided the court with a clear exposition of the law related to a matter of this nature.

[23] The two-step process involved is that there must be a dispensing with the parents' consent to the adoption and then the application for the proposed adoption.

[24] This application for adoption is pursuant to section 146(2)(a) of the Child and Family Services Act. The section says that the application is to be determined in accordance with what is in the child's best interest.

[25] A relative may make the application. Section 3(1) of the Child and Family Services Act defines a relative to include a grandparent, whether by blood or through a spousal relationship. As a result these applicants may make the application.

[26] Section 137(2) of the Act states that an adoption of a child is not to be made without the written consent of every parent; however section 138 says that a court may dispense with consent where the court is satisfied that it is in the child's best interest to do so.

[27] In considering the question of what is in the child's best interests the court is to act upon the relevant aspects of section 136(2) of the Act. The relevant concerns would be ensuring that the child's physical, mental and emotional needs are being met in accordance with the child's level of development, together with respecting the child's cultural background and the child having a positive relationship with a parent in a secure place as a member of a family. In doing so the court is to take into account the child's relationships by blood and the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. The child's views and wishes are also to be considered if they can be reasonably ascertained, although that is not readily available in this case.

[28] The principles that should be applied in determining whether a consent should be dispensed with would include the factors set out in section 136, as above, and what the child will gain and lose, with emphasis on what the child will gain in proceeding with the adoption. The court must also consider the child's existing family reality. See M.A.L. v. R.D.M., at paragraph 5.

[29] It is important to note that parental misconduct is not the issue. The exclusive focus is the child's best interests, not the rights of the biological parent. See J.D.R. and M.L. v. M.K.L. and T.C., 2015 ONCJ 81, at paragraph 21.

[30] The case of R.S. v. V.W., 2011 ONCJ 185, at paragraph 38, makes the observation that where a relationship between a natural father and a child is nonexistent, courts are more persuaded to dispense with the natural parent's consent.

[31] In the M.A.L. decision the court found it was appropriate to dispense with the consent of the father to the adoption because "the father had effectively severed his relationship with the children through his inaction." The court observed that the children would not be losing a relationship because it had long since been severed as he had not participated in their lives in any meaningful way. See paragraphs 8–10. In that case the court contrasted that absence of a connection with the biological father with what the children had to gain by adoption. See paragraph 9.

[32] In the J.D.R. case the court noted that the respondent had never brought a motion or application for access in more than "the four years that [the] child had resided with the applicants". See paragraph 29. In that same case the court also observed that "there are clear benefits that come with adoption that are not available in a custodial arrangement. Adoption brings with it similarity in family name, security at home in a family unit, benefit of stability in inheritance situation or upon death of a biological parent, confirmation of the reality of who is doing parenting and reaffirmation of sibling relationships." See paragraph 33.

[33] In the C.(P.) v. C.-G.(P.C.), 2004 ONCJ 36, at paragraph 36, the court observed that in weighing the advantages of an adoption against the unknown and unlikely benefits that might be provided by the biological father, the benefits of adoption must be given great weight. The court also noted that in a case where the father complained that he had been denied access to the child it was found that the father had never had any relationship with the child and it was unlikely he could bring anything positive to a relationship with the subject child. See paragraph 21. The court also said that "the respondent must show that he will bring something positive to the child's life now or in the future." See paragraph 29. Finally the court also observed that an adoption order will strengthen the relationship between the child and the adoptive parents and that the possible reintroduction of the father whom the child does not know would be disruptive to the child's life and cannot be in her best interests. See paragraphs 37 and 38.

[34] The factors set out in section 136(2) clearly weigh in favour of the adoption proceeding. The needs of the child are being met in her grandparents' home. There is no cultural disconnect. She has a secure place as a member of a family and allowing the adoption to proceed would ensure that there is continuity in her life. With an adoption there would be little chance of significant disruption in her living circumstances. In fairness it is noted that in all likelihood the child will not now have a positive relationship with her father, notwithstanding the offer by the grandparents to be open to contact. However I fear that the father's argumentative personality and his hostility towards the grandparents will get in the way. Fortunately the child will have a relationship with her mother, who continues on good terms with her parents.

[35] It is also important to recognize the reality of the child's actual family life. She has lived with her grandparents essentially since birth. If that placement was disturbed she would have a lot to lose, and in return the father has very little to offer, either in terms of the ability to provide a home and the other necessaries of life and in terms of continuity with familiar faces and places.

[36] In this case there is no evidence of any connection between the child and her father – and the reason for this is that it was never built by him. He could never find the means or motivation to do what was required to establish that relationship. And now the child's life moves on. She is happy and healthy in a family where she is loved. That home should be encouraged and supported so that the child benefits from the long term security of a permanent adoptive home. It should not be disturbed.

[37] It is important to understand that the legal test is what is in the best interests of the child. It is not a question of blaming the father, but rather recognizing what has in fact happened. J.E.P. has no realistic prospect of adding anything positive to W.V.S.B.'s life. She is better off being adopted by the applicants. This would be in her best interests.

CONCLUSION

[38] After considering the facts and the law, it is this court's opinion that it is in the best interests of the child to dispense with the consent of J.E.P. to the adoption that is proposed by T.L.I. and D.J.B. of the child W.V.S.B., born […], 2009, and his consent with respect to that adoption is dispensed with pursuant to section 137(9) of the Child and Family Services Act.

[39] If the parties wish to speak to costs they can set a date with the clerk.

Released: May 5, 2015

Signed: "Justice Brophy"