Court File and Parties
Ontario Court of Justice
Date: 2016-11-08
Court File No.: Halton A16/20
Between:
K.C.F. Applicant
— And —
M.W. Respondent
Before: Justice Victoria Starr
Motion made in writing, by Form 14B
Endorsement
Released November 8, 2016
No one appearing
K.C.F. .......................................................................................................... on his own behalf
M.W. ................................................................................................................. not represented
VICTORIA STARR J.:
OVERVIEW
[1] 6 year old L.A.F.'s stepfather has applied to adopt her. Her biological father never lived with her and has seen her less than a dozen times since her birth. He has been "incommunicado" for some time and neither L.A.F.'s stepfather nor her mother know where he is. These circumstances make it difficult to give the biological father notice of the proposed adoption and to secure his consent to the adoption. The stepfather has brought an application to dispense with the biological father's consent to the adoption. The stepfather has also made a motion in writing. It is not entirely clear what relief is sought as the order requested is an order to "dispense with service of the consent". The motion is made without notice.
[2] The stepfather has confused the criteria for dispensing with consent with the criteria for dispensing with notice of the application or motion to dispense with consent. While it is true that the Child and Family Services Act contemplates the deprivation of notice of the adoption application on a parent such as where it has ordered that the parent's consent to the adoption is dispensed with, the parent is still entitled to notice of the application to dispense with his consent. No such notice has been given. The only alternative available to the stepfather is for him to satisfy the court that a reasonable effort has been made to give such notice.
[3] I am not satisfied on the evidence before me, that sufficient efforts have been made. In the result, I have adjourned the stepfather's motion and application to dispense with consent, for further evidence.
THE LEGAL FRAMEWORK
A Parent's Written Consent to Adoption is Required
[4] The specific provisions of the Child and Family Services Act, R.S.O. 1990, c. C-11 ("CFSA"), as amended, relevant to this application are as follows:
137. (1) in this section,
"Parent", when used in reference to a child, means each of,
(a) the child's mother,
(b) an individual described in one of paragraphs 1 to 6 of subsection 8 (1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father,
[5] Section 8(1) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended, as incorporated by the above section reads in part as follows:
8.-(1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
- The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they cease to cohabit.
[6] In this case the applicant's and the biological mother's evidence is that the respondent is the biological father of the child to be adopted. He thus falls within the definition of parent in clause 137(1)(b) of the Act, more specifically because he falls within paragraph 8(1) ¶1 of the Children's Law Reform Act. Consequently, pursuant to subsection 137(2) of the CFSA, his written consent is required before an order for adoption can be made.
137(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. R.S.O. 1990, c. C.11, s. 137 (2).
Notice of Adoption Application is Required
[7] Subsection 151(4) of the CFSA sets out only two circumstances where service of notice of the adoption application is not required. Notice is not required on a:
- parent who has given valid consent under clause 137(2)(a) of the Act and not withdrawn it: see clause 151(4)(a) of the Act.; or,
- person with whose consent the court has dispensed: see clause 151(4)(b).
[8] The biological father in this case has not given the valid consent required in clause 137(2)(a) and the court has not dispensed with his consent under clause 151(4)(b). Until one of these two events occur, notice of the adoption application is required.
Notice is also a Prerequisite to an Application to Dispense with Consent to Adoption
[9] The court does have authority to dispense with the consent of a parent to the adoption of a child and where such an order is made, notice of the adoption application will not be required. This authority is limited however, to the circumstances set out in section 138 of the Act, which reads as follows:
138. Dispensing with consent. -- 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. [emphasis added]
THE 14B MOTION FORM
[10] As I have said, in this case both an application to dispense with consent to the adoption was made along with a 14B Motion. The relief sought in the 14B Motion is not clearly articulated. It does not specifically state that the applicant is seeking an order dispensing with notice of the application to dispense with his consent. It states, in part:
"…I wish to apply to the court to dispense with the service of consent of the biological father, M.W…"; and,
"It is clearly in the best interests of the child to dispense with the service of this consent as she already has no relationship with the biological father and only knows her two parents to be myself and her mother T.F."
[11] The applicant is self-represented. The content of the 14B Motion form as well as the affidavits filed in support of the motion and application refer to section 138, and rely on factual circumstances clearly intended to satisfy both prerequisites. There is also discussion of the efforts made to locate the respondent and of facts relating to the child's best interests. Without the benefit of submissions I infer from that content that the applicant seeks an order dispensing with service of notice of the application to dispense with the biological father's consent.
[12] Based upon my inference and on the applicant's reliance in his 14B on subrule 2(3) and 2(4) of the Family Law Rules, O. Reg. 114/99 (the "Rules"), I am prepared to overlook the drafting deficiencies and to deal with the matter as if it was properly pled. Dismissing the application and motion will achieve nothing but further delay in the adoption and put the applicant to unnecessary expense. Further, if direction is not given now by the court, the evidence on the next occasion will essentially be the same and thus remain inadequate. In other words, dealing with the issue of notice now will save time and expense. It also enables the court to give appropriate court resources to this case without taking away from the resources the court has available to meet the needs of other cases. This approach is fair and just and fulfills the court's duty to promote the primary objective of the Rules [see subrule 2(2), 2(3) and 2(4)].
[13] To be clear, this matter proceeds as an application to dispense with the biological father's consent to the adoption and as a motion to dispense with notice of that application. As the motion for an order dispensing with notice to the biological father of the application to dispense with his consent to the adoption must succeed before the application to dispense with consent can proceed, I deal with the motion first.
MOTION TO DISPENSE WITH NOTICE OF APPLICATION TO DISPENSE WITH CONSENT TO ADOPTION
Authority to Dispense with Notice
The test is not best interests of the child
[14] In the 14B Motion form, the applicant submits that notice should be dispensed with because it is in the child's best interest to do so. The relevance of the best interests of the child is limited to the first prerequisite in section 138. It has nothing to do with this second prerequisite. Whether the court is satisfied that parental receipt of these notices has been effected will not be affected by the child's best interests, one way or the other.
The Court cannot dispense with notice because if it is fair and just to do so
[15] The second basis relied upon in the 14B Motion form is that it is fair and just to make such an order pursuant to subrules 2(3), and 2(4) of the Rules. That is, that the court derives its jurisdiction to dispense with notice of the application to dispense with a party's consent to the adoption where requiring such notice would amount to dealing with the case unjustly and unfairly.
[16] In Children's Aid Society of Toronto v. O. (L.), [2003] O.J. No. 4459 (Ont. C.J.), Spence J. addressed the issue of whether rule 2(2) can be interpreted so broadly as to permit a Court to dispense with service on a party under circumstances other than those described in in subrule 6(16), the rule ordinarily relied upon to dispense with service. So too did S.S. Bondy, J. in the case of Windsor-Essex Children's Aid Society v. L. (R.), [2012] O.J. No. 2484, 2012 ONCJ 325 (Ont. C.J.). Both Justices concluded that it cannot. At paragraph 19 of his decision Spence J. states:
[19] It is clear, that the purpose underlying the sub rule that allows a Court to dispense with service is to permit a case to move forward when a party cannot be located and no form of substituted service would bring the documents to that party's attention. The Court's jurisdiction to dispense with service is limited in scope by the wording of the sub rule. Although sub rule 2(2) states that the "primary objective" of the rules "is to enable the Court to deal with cases justly" it is difficult to conceive how sub rule 2(2) can be interpreted so broadly as to permit a Court to change the substantive meaning of sub rule 6(16) by expanding the circumstances in which a Court may dispense with service on a party. To interpret the sub rule in such a manner would effectively add an entirely new meaning to sub rule 6 (16), a meaning that the sub rule did not intend.
[17] Bondy J., in her decision in Windsor-Essex Children's Aid Society v. L. (R.), supra, found that there is no jurisdiction under the C.F.S.A, the Family Law Rules, or at common law to exclude a parent as a party (and hence avoid the necessity for service). Although the context of those proceedings is different from the one in this case, her comments with respect to notice are equally applicable. In her view, failing to provide notice would violate the father's fundamental right to notice and to be heard and would deprive the court of a fulsome review of the evidence to determine this child's best interests. She sets out how she arrived at this conclusion at paragraph 43 of the decision where she sates:
[43] Not only am I bound by the Supreme Court of Canada decision relating to notice, child protection, fundamental fairness and section 7 of the Charter rights, but I agree with the findings of Justice Clifford S. Nelson found in Children and Family Services for York Region v. E.T., 79 R.F.L. (6th) 263, [2009] O.J. No. 5587, 2009 CarswellOnt 8161. I prefer Justice Nelson's reasoning. I am likely bound by his findings and frankly I completely concur with his analysis.
[18] I am also mindful of Justice S.B. Sherr's comments in Jewish Family and Child Service of Greater Toronto v. B. (K.), 2016 CarswellOnt 7222, 2016 ONCJ 259, [2016] W.D.F.L. 3934, 266 A.C.W.S. (3d) 634, at paragraph 15:
15 Courts should not lightly grant orders dispensing with service on a parent, particularly in child protection cases. This is the case, even if the parent has had little involvement with the child or might be a risk if served. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. See: Windsor-Essex Children's Aid Society v. L. (R.), 2012 ONCJ 325 (Ont. C.J.); Children & Family Services for York Region v. T. (E.), [2009 CarswellOnt 8161 (Ont. S.C.J.)]; Children's Aid Society, Region of Halton v. R. (D.), 2015 ONCJ 314 (Ont. C.J.), per Justice V.A. Starr. If service is dispensed with, it robs a child of a potential family relationship, even if that potential is small.
[19] I concur with Bondy J., Spence J., and Sherr J's analysis. In my view, although they dealt with motions to dispense with service of documents in the context of other proceedings under the CFSA - child protection proceedings – I see no reason why their reasoning is not equally applicable to the court's interpretation of clause 138(2)(b). I would add that, in adoption applications, there should be even less flexibility or room to deviate from the statutory criteria for dispensing with notice and an even higher standard required of the evidence because the stakes are even higher than in child protection cases. Adoption forever severs the child's ties to the biological parent. Further, an order that dispenses with a required parental consent effectively decides the application for adoption in most cases. An order to dispense with notice to parents whose consent is otherwise required, virtually guarantees that the order dispensing with their consent will be made. For these reasons, I find that the court does not have jurisdiction under Rule 2 to dispense with service of notice in any circumstances other than those set out in section 138. This is so even though requiring service may be unfair, unjust, and contrary to the best interests of the child.
Statutory authority to dispense with notice exists; one need not rely on the Rules
[20] In the case of H. (M.L.) v. A. (W.G.), 2009 CarswellOnt 9394, 2009 ONCJ 719, [2009] O.J. No. 6215, [2011] W.D.F.L. 823, 196 A.C.W.S. (3d) 414, 91 R.F.L. (6th) 213, Justice John Kukurin of the Ontario Court of Justice was faced with a motion by the applicant for orders dispensing with parental consents and dispensing with service on the parents of the child. Similar to the case at bar, the effect of the motion would be that a parent (in that case both) need not even be given notice of the request of the applicant for an order that they need not be given notice of the applicant's claim that notice to them be dispensed with. At paragraph 10 of that decision Kukurin J states:
10 It is always a bit of a mental exercise to grapple with section 138 requests to dispense not only with consents but also with notice to the person whose consent is required. The court is asked to make a determination, with the input of the applicant only, on the issue of whether, in effect, the parents, whose consents are otherwise required, should have any input on the question of whether the court should or should not dispense with their consent. Actually, this motion goes a step farther. It asks the court to make an order, without any input from these "parents", that they need not even be given notice of the request of the applicant for an order that they need not be given notice of her claim that notice to them be dispensed with. Now isn't that a mind bender!
[21] I agree with Justice Kukurin's analysis of the second prerequisite set out in section 138, and as set out in paragraph 14 of his decision. That is, that the second pre-requisite requires the court to be satisfied that the respondent, in that case and in this a parent, has received notice of:
- the proposed adoption, and
- the application to dispense with their consent to the adoption.
[22] Alternatively, the court's satisfaction that a reasonable effort has been made to give such notice will suffice to fulfill this second prerequisite.
[23] Some additional noteworthy aspects to this second prerequisite that I also adopt are highlighted at paragraph 15 of that decision and are:
15 There are some noteworthy aspects to this second pre-requisite.
The first is that it is essentially judicial satisfaction of a factual circumstance. The factual circumstance is that notice has been received by the parents of both the adoption application as well as of the application to dispense with their consent.
The second is that the best interests of the child has nothing to do with this second pre-requisite. In other words, whether the court is satisfied that parental receipt of these notices has been effected will not be affected by the child's best interests, one way or the other.
The third is that this is a requirement found in the statute itself.
The fourth is that there is an alternative to the parental receipt of the requisite notices, but it is rather specific, namely judicial satisfaction that reasonable efforts have been made to give such notices.
Fifth, courts are generally satisfied only with sworn evidence.
[24] Justice Kukurin did not find it necessary to turn to subrule 6(16) or nay other rule in the Family Law Rules to locate the court's authority to dispense with notice of the application to dispense with the parents' consent, in that case. In his view, as in my own view, the language of the alternative provided in the latter part of subsection 138(b) of the Act gives the court authority to do away with the requirement of service of notice, if not explicitly, then implicitly. Further, subsection 138(b) is restricted to adoption proceedings specifically, to motions within adoption proceedings to dispense with consents required by section 137, or to dispense with the need to give notice to persons whose consents are otherwise required under section 137.
The test to dispense with notice is reasonable effort to give notice
[25] Before the court will grant such an order it must be satisfied that reasonable efforts to give notice have been made. What subsection 138(b) does not provide, is guidance in assessing when any efforts made will be sufficient to meet the reasonableness standard. Clause 138 (b) of the CFSA, clause 14(2) (a) and subrule 6(16) of the Rules, all employ a similar test for dispensing with notice or moving without notice.
Clause 138(b) of the Act: "the court is satisfied that . . . a reasonable effort to give the notice has been made."
Clause 14(2)(a) of the Family Law Rules: A motion may be made without notice if, . . .the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
Subrule 6(16): A court may order that service is not required if
- (a) reasonable efforts to locate the person to be served have not been or would not be successful; and
- (b) there is no method of substituted service that could reasonably be expected to bring the document to the person's attention.
[26] The similarity between the tests employed in the Rules and that in subsection 138(b) coupled with the lack of guidance in the application of the test in subsection 138(b) both within the subsection and in the jurisprudence with respect to motions to dispense with notice of an application to dispense with consent, make it reasonable to look for such guidance to the Rules as well as related jurisprudence.
Reasonable Efforts to Give Notice
Some general guidelines in the application of the reasonable efforts test
[27] Given the higher stakes in adoption proceedings, it stands to reason that the starting point in terms of the standard to apply must be at least equal to or greater than the standard applied in subrule 6(16). Subrule 6(16) contemplates only two situations in which the court can dispense with service on a party: First, reasonable efforts to locate the party must be made and despite those efforts the party cannot be located; and second, no form of substituted service would bring the documents to that party's attention.
[28] Rule 6(15) of the Rules is also of assistance in that it provides guidance as to the standard of the evidence. It sets out a two pronged test that must be met in order to secure an order permitting substituted service. The person seeking such an order must:
(a) Provides detailed evidence showing,
- (i) What steps have been taken to locate the person to be served, and
- (ii) If the person has been located, what steps have been taken to serve the document on that person; and
(b) Shows that the method of service could reasonably be expected to bring the document to the person's attention.
[29] From a combined reading of subrules 6(15) and 6(16) I conclude that it is not enough to simply try and fail to locate a person. One must also look into alternate methods of service that could reasonably be expected to draw the documents to the attention of the person. Further, the party seeking to dispense with notice, must file an affidavit detailing, at minimum:
a. The details of the efforts they made to locate the person;
b. The results of each effort they made to locate the person;
c. Their efforts to find some alternative means of giving notice; and,
d. An explanation as to why no other method of giving notice can be expected to bring the documents to the parson's attention.
[30] As for guidance with regards to what is expected in terms of actual steps or effort, there is no rule, section of an Act, or case that sets out any defined list. What the case law reveals is a shared general sentiment that what is "reasonable" will depend on the circumstances of each particular case. Having said that, it is possible to come up with a non-exhaustive list of some of the efforts that various litigants have employed and which ought to be of some assistance to litigants wondering what is expected of them. For example, the list of potential ways in which one can go about trying to locate a party who must be given notice include the following:
a. Email, text, telephone or message (i.e. text or i-message or other messaging via social media), where the party asks for an address for service or gives effective notice by uploading and attaching a copy of the documents to the message, or, sets out details of the application within the body of the message;
b. Conduct a reverse cell and telephone number look-up. This method may provide an address for the owner of the account associated with the telephone or cell number and thus, the name and address of the person to be located or, a person who may have information about the whereabouts of a party or on whom subservice can be carried out;
c. Search for the party on social media sites, including:
- What's Up
d. Conduct general internet searches using various search engines. Search engines like Google, Bing, and Yahoo! provide some of the largest conglomerations of websites and information. One may be able to locate a person through the posts that person has made in discussion groups; reviews they have provided online; resumes posted to job or career sites; ads on Craig's List; newspaper articles; etc.
e. Directory searches including:
- Online telephone directories (such as 411.ca and whitepages.ca; which are important online directories but just two of many). It is important to search in multiple locations if the party has a connection to, or has lived in, or worked in other cities or provinces, as he or she may now be living there;
- Professional associations or organizations to which the party or a friend or relative of the party may belong (i.e. engineers, accountants, lawyers). Government employee directories also exist as may union membership lists;
- High school and post-secondary institution Alumni membership database directories;
f. Find and make inquiries of relatives and friends. The whereabouts of such persons may also be found using the same techniques just cited;
g. Obtain a credit report from a credit reporting service such as Equifax;
h. Search public records. Such records include: birth, death, marriage and divorce certificates; deeds, mortgages, and other related property records; various licenses, including professional and business licenses; driving records and; court records. These records are kept by government agencies. The release of these records is often subject to certain restrictions or fees. Not all contain contact information but some do and some can serve as a lead to other records or sources that may assist in finding someone. Most importantly, many of these records are available online. For example, many court decisions in civil, criminal, family separation and divorce cases are published online and are available on a national scale (such as on CanLII: http://www.canlii.org/en/);
i. Hire a "Skip Tracer". A 'skip trace' is the language used to describe the process of tracing a person's past to locate their current whereabouts. A "skip tracer" is the professional who does this type of work. These professionals are adept at conducting the various types of searches I have referred to above and more for a fee. They are frequently used by law firms and other businesses particularly when trying to locate a judgment debtor;
j. Although not available in this case, where the case involves a child support claim pursuant to section 33 or 37 of the Family Law Act, RSO 1990, c F.3, and the claimant needs to learn or confirm the proposed respondent's whereabouts, the claimant may bring a motion pursuant to subsection 42(4) of the Act for an order requiring a person or public body to provide the court or the moving party with any information that is shown on a record in the person's or public body's possession or control and that indicates the proposed respondent's place of employment, address or location. The scope of those from whom such information may be obtained is broad. It includes: friends or relatives, employers, union or other organisation the person may belong to. It also includes public authorities such as the Ministry of Transportation, Ontario Health Insurance Plan, the Crown, Family Responsibility Office, Ontario Works, Ontario Disability Insurance Plan, Corrections Canada, Ministry of Community and Correctional Services, and so on;
k. Obtain an order for subservice by advertisement, on a friend, relative, employer, the Family Responsibility Office, or other person or public body such as those I have described above and then carry out the approved method of service; and,
l. Retain a private investigator.
[31] I am not suggesting that each and every one of these methods must be tried in every case. Some may be so cost prohibitive as to make them inaccessible and thus, unreasonable. Some may not be avenues available to members of the public at large, such as obtaining a credit report. What I am suggesting is that the party seeking to dispense with notice consider each option and others that may be available and at least explain why certain obvious search avenues are inaccessible or would fall outside of the realm of what is reasonable in the circumstances. I am also suggesting that in adoption cases, the court's expectations of the efforts made to locate the party or a person related to him or her upon whom subservice may be carried out, will be that those efforts be more extensive and comprehensive than the efforts required in less consequential proceedings.
EFFORTS IN THIS CASE
[32] In support of the motion to dispense with service of notice of the application to dispense with consent, the applicant submitted the affidavit of the biological mother sworn August 30, 2016. The highlights of her evidence are generally focused on illustrating the poor character of the respondent, his poor treatment and abuse of her, his minimal involvement in the child's life, and that he has been "incommunicado" since New Year's Eve 2013. Her evidence is also that he has no family that he is connected to that she could contact to locate him. She also indicates that the information she previously had about him and that could assist in locating him, is no longer current. In this regard she deposes that he told her at one time that he left the army and was staying with friends but did not give her the address. Based upon her evidence, it appears that at one time, the mother had both a cell number for the biological father as well as an email address.
[33] With respect to her last contact with him, the mother deposes that: this occurred on New Year's Eve 2013. Apparently he had seen a picture of the mother, applicant and the child on Facebook and sent her a string of abusive messages. The mother and child were in London, U.K., staying with the applicant at the time and it was the mother's 10-year-old niece who discovered the messages when she turned on the mother's computer to play a game; the messages popped up in the notifications. The mother's sister responded to the biological father immediately and told him not to contact the mother again until he could behave like a grown up; he did not respond. After this incident, the mother says, the biological father either changed the name of his profile, blocked the mother and her family, or, deleted the account entirely, because the mother could not find his profile again after that date. She does not say when she last looked.
[34] The evidence makes it abundantly clear that the mother does not know where the biological father is and she does not have any contact information for him.
[35] As for actual efforts to locate the biological father, the mother's evidence focuses on the biological father's failure to contact any of her family members. That may be the case but the effort the court is interested in is that of the applicant or the mother to locate him, not the other way around. With respect to the efforts made to locate him, the mother deposes that "knowing that we would be starting the adoption process shortly", she took these recent steps:
a. She tried to e-mail him at the last known email address she had for him. An effort that was met with a delivery notice failure;
b. She tried to contact him using the UK Election Roll. The search results showed results for a person fitting the respondent but showed that that person was last registered between 2009-2010 and showed the same address as that where she and he lived before they separated;
[36] I am not in the least bit satisfied that either he applicant or the mother have made reasonable efforts to give notice to the respondent of the proposed adoption, the application to dispense with his consent to the adoption, or more importantly, notice of the motion to dispense with notice of the application to dispense with his consent. They have made very little in the way of efforts to locate him and none of those efforts have been serious or rigorous.
[37] It is this court's expectation that the applicant:
(a) either serve the biological father with the application to dispense with his consent to the adoption;
or,
(b) consider the various options I have listed above as symbolic of the kind of steps the court expects will be made before it will find that reasonable efforts to give notice have been made; and,
(c) take those steps or others that may enable them to locate the biological father or identify some other method of service that can serve as a substitute; or,
(d) explain why such or certain steps cannot be taken, or, why it is unreasonable to expect such steps to be taken.
[38] Further, the court will require a detailed affidavit setting out these details, including exactly what steps were taken and when, and the results of the steps. Until such time as the applicant does this, the court will not entertain the applicant's motion to dispense with notice to the respondent of the application to dispense with his consent to the adoption, let alone dispense with his consent to the adoption.
CONCLUSION
[39] For all these reasons the application to dispense with consent and the motion to dispense with notice of the application to dispense with consent, cannot succeed at this time. Rather than dismiss the motion and application, I have decided the fair and just thing to do is to allow the applicant time to make the requisite efforts to give notice. If those efforts are successful, the applicant can withdraw his motion and take whatever other steps may be appropriate depending on the biological father's response. If those efforts fail, the applicant may file further evidence and request that the trial coordinator bring that evidence to my attention, so that I may decide the motion to dispense with notice and if notice is dispensed with, the application to dispense with the biological father's consent.
ORDER
Motion to dispense with notice of the motion to dispense with notice of the application to dispense with the respondent's consent, and application to dispense with the respondent's consent to the adoption, are each adjourned for further evidence.
If additional evidence is filed court services are requested to rerun the motion and application before me in chambers.
Released: November 8, 2016
Signed: "Justice Victoria Starr"
Footnotes
[1] It is important to note that the information available to non-members is often far less than that available to members of the social media site. This is certainly the case for Facebook. To ensure the most comprehensive data is made available, the searching party should join and open their own page.
[2] The only other reported case wherein subsections 42(3) and 42(4) is discussed and my view confirmed is: Shea v. Director of Support and Custody Enforcement; see paras 11 and 12
[i] Section 42 of the Family Law Act, supra, reads as follows:
Obtaining information
Order for return by employer
42. (1) In an application under section 33 or 37, the court may order the employer of a party to the application to make a written return to the court showing the party's wages or other remuneration during the preceding twelve months. R.S.O. 1990, c. F.3, s. 42 (1).
Return as evidence
(2) A return purporting to be signed by the employer may be received in evidence as proof, in the absence of evidence to the contrary, of its contents. R.S.O. 1990, c. F.3, s. 42 (2).
Order for access to information
(3) The court may, on motion, make an order under subsection (4) if it appears to the court that, in order to make an application under section 33 or 37, the moving party needs to learn or confirm the proposed respondent's whereabouts. R.S.O. 1990, c. F.3, s. 42 (3).
Idem
(4) The order shall require the person or public body to whom it is directed to provide the court or the moving party with any information that is shown on a record in the person's or public body's possession or control and that indicates the proposed respondent's place of employment, address or location. R.S.O. 1990, c. F.3, s. 42 (4).