Court File and Parties

Date: 2018-04-09

Court File No.: Halton A17/25

Ontario Court of Justice

In the Matter of: an application by C.L.W. for the adoption of the adult child D., pursuant to subsection 146(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11.

Before: Justice Victoria Starr

Motion made in writing, by Form 14B

Counsel: Fulvio K. Delibato, for the Applicant

Endorsement

Released April 9, 2018

No one appearing

VICTORIA STARR J.:

OVERVIEW

[1] This decision addresses the following issues in the context of an application to adopt an adult:

(1) whether parental consent is required;

(2) whether a parent is entitled to notice and to be served with the adoption application, notices of motion, orders made, etc.;

(3) whether and when a parent should be added as a party to the adoption proceeding and any motions within those proceedings;

(4) the locus of the court's jurisdiction to dispense with notice and service; and the test to be applied where such relief is sought.

[2] The applicant applies to adopt D. D is the adult son of his spouse. D and his mother each provided their written consent to the adoption.

[3] D's biological father has not been given notice of this adoption application.

[4] The adoption application came before me in chambers on October 18, 2017. I did not grant the adoption. Instead, I adjourned it to allow the applicant an opportunity to cure certain shortcomings in the evidence, and, to make written submissions on the issues of notice to, and the consent of, the biological father.

[5] Subsequently, a 14B motion along with additional affidavit evidence was filed. Submissions were made in writing by way of letter from counsel, dated December 28, 2017.

[6] The applicant's motion is for an order dispensing with the consent of the biological father if consent is required. The applicant also seeks an order dispensing with notice and service of any order made on the motion.

Background

[7] The applicant has been a father to D since 2004 and especially, since August 2005, when he married D's mother.

[8] D was born on October 26, 1991.

[9] D has not seen his biological father since he was about 12 years old.

[10] D has not lived in the home of his mother and stepfather since he left to attend university. He has since graduated with a degree in civil engineering.

[11] D is working and is financially independent.

[12] D is also married now. He lives with his wife in their home, in Burlington, Ontario.

[13] Based on the foregoing, the applicant submits, and I find, that D has withdrawn from parental control and is an independent adult.

[14] The evidence filed in support of the request to dispense with notice and service is essentially this:

(a) D fully understands the nature and consequences of the adoption proceedings, being a mature independent adult and having further reviewed and discussed this adoption with independent counsel retained by D for the purpose of obtaining independent legal advice;

(b) The applicant and D do not wish to send notice of the adoption proceedings to D's biological father, who has not been involved in D's life since he left him, his brother and mother (their family) many years ago;

(c) D was most pleased when the stepfather brought up his wish to formalize his role as his father, which role he has taken on since entering the children's lives over 13 years ago; and,

(d) The applicant does not wish to open "old wounds".

Consent of a Parent is not required in Adult Adoptions

[15] The court's authority to make an order for the adoption of an adult (a person who is eighteen years of age or more), or, a child who is sixteen years of age or more and has withdrawn from parental control, is found in subsection 146(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11 (referred to herein as "the CFSA"). That subsection reads as follows:

(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

(b) a child who is sixteen years of age or more and has withdrawn from parental control,

on another person's application. R.S.O. 1990, c. C.11, s. 146(3).

[16] The CFSA clearly sets out, in subsection 137(2), that the consent of a parent to the adoption is required where the child is less than 16 years of age and, where the child is more than 16 years of age but has not withdrawn from parental control. The biological parent's consent, can however, be dispensed with pursuant to subsection 138(1).

[17] There is no provision similar to subsection 137(2) or section 138 for proposed adoptees who are over the age of 18, or who are 16 years of age or more and have withdrawn from parental control. In this context and considering as well the reference in subsection 146(3) to persons (as opposed to children) who are 18 years of age or more, the absence of a statutory requirement for the parents of those described in subsection 146(3) to consent to the adoption, must be seen as intentional. I conclude therefore that, where a child is 16 years of age or more and has withdrawn from parental control, and, where the person to be adopted is over the age of 18, the consent of the proposed adoptee's parent to the adoption is not required.

[18] Provincial Judge Heather Katarynych, reached the same conclusion in the case of Re A.L.K.Q., 1996 Carswell Ont 353, [1996] W.D.F.L. 875, [1996] O.J. No. 353, 60 A.C.W.S. (3d) 983, 7 W.D.C.P. (2d) 116, 9 O.F.L.R. 186. In that decision, Justice Katarynych conducted a detailed analysis of subsection 146(3) and how it should be applied. Her analysis begins with a comparison between the provisions that apply to adult adoptions and those provisions of the Act that apply to adoptions of minors as well as when compared to its statutory forerunners. One of the differences identified relates to consent. At paragraph [9] of the decision, she wrote, in part:

[9] Beyond those common features, the legislation is singularly unhelpful in several respects in its treatment of adult adoptions, especially when compared to its provisions for the adoptions of minors or when compared to its statutory forerunners:

3. No consents to the adoption are required from any parent. No legislative imperative requires the court to ensure — as it must for a minor child in clause 152(2)(a) — that those whose rights are annihilated by an adoption order, understand and appreciate that loss.

[19] Given my finding that a parent's consent is not required for the adoption of an adult, there is no need for the court to dispense with the consent of the adult person's parent.

[20] In this case, D is 26 years old. The evidence makes it clear that he has withdrawn from parental control and, in any event, given that he is over the age of 18, he is an adult and the consent of his biological father is not required for this adoption to be granted. An order dispensing with his consent is thus, not required.

Notice and Service is required in Adult Adoptions

[21] While the adult's parents need not consent to the adoption, the issue remains whether they are entitled to notice of the adoption application and of motions and orders made within the proceedings. Notice is ordinarily affected through service of a copy of the relevant court documents on the parent. For the reasons that follow, I find that an adult adoptee's parent is entitled to notice and to be served with a copy of the adoption application, any motion materials and with a copy of any orders made in the adoption proceeding.

[22] Subsection 151(4) identifies specific individuals who have no right of notice to an adoption application. That subsection reads as follows:

(4) No right to notice. — No person,

(a) who has given a consent under clause 137(2)(a) and has not withdrawn it;

(b) whose consent has been dispensed with under section 138; or

(c) who is a parent of a Crown ward who is placed for adoption,

is entitled to receive notice of an application under section 146. R.S.O. 1990, c. C-11, s. 151(4).

[23] Counsel submits that the notice contemplated in subsection 151(4), in its reference to subsection 146(3) [adoption of those over 18 or 16 years of age or more who have withdrawn from parental control], draws one back to subsection 137(2) [adoption of minors and those 16 years of age or more but who have not withdrawn from parental control], thus, connecting the requirement of notice to those who must give consent. Counsel submits that, from this, it follows that, if consent is not required for the adoption of an adult, then notice, which would otherwise be required for consent, is also not a necessity, as intimated by the clear absence of such a stipulation.

[24] I am not persuaded. Subsection 151(4) sets out only three circumstances where service of notice of the adoption application is not required, which by virtue of the reference to section 146 as a whole, means it applies to applications to adopt an adult pursuant to subsection 146(3). Subsection 151(4) reads as follows:

No right to notice

(4) No person,

(a) who has given a consent under clause 137(2)(a) and has not withdrawn it;

(b) whose consent has been dispensed with under section 138; or

(c) who is a parent of a Crown ward who is placed for adoption,

is entitled to receive notice of an application under section 146. R.S.O. 1990, c. C.11, s. 151(4).

[25] While the language of subsection 151(4) references situations where consent is required, it does not follow that, where consent is not required, notice is not required. The language in this section is clear, the only time notice is not required in an adoption, is where the circumstances fall into one of the listed exceptions. Thus, for all other matters, including those where consent is not required, notice is still required.

[26] Consider as well, the underlying reason why notice is not required in the three exceptions. In the first exception, notice is not required not because the parent consented, but because in being asked to give written consent and then in giving it, the parent has confirmed receipt of notice of the adoption. In other words, the consenting parent has received effective notice of the proposed adoption. In the second exception, notice is not required because, the person whose consent the court has dispensed with, is supposed to be party to the motion or application to dispense with his or her consent. By being served with the application or motion to dispense with consent, the person effectively receives notice of the proposed adoption. In the third, the parent's rights have been terminated, in part, for the purpose of adoption. The parent will have received effective notice of that plan in the proceedings which resulted in the order making the child a Crown Ward, and when the order was made.

[27] In this case, the biological father does not fall within the class of persons who have no right of notice. Formal notice is required because one of the parents (the biological father) has not had any notice, let alone effective notice of the adoption or the within motion.

[28] There is another, more fundamental reason, why notice is required, even when the person to be adopted is an adult. The parents of an adult who is the subject of an application for adoption have legal rights that are limited but do exist. The granting of the adoption will likely defeat the legitimate claim of the proposed adoptee's existing parents under other legislation. For example, pursuant to section 32 of the Family Law Act, RSO 1990, c F.3, every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. The adoption order will irrevocably terminate this right.

[29] I can envision a situation where an adult child learns that his parent is ill, unable to support himself financially and is contemplating making a claim for support against the adult child. Having caught wind of this, the adult child colludes with another adult to be adopted by that adult. If the adoption is granted, the adoption would effectively defeat the parent's legal right to support, forever, given that adoptions are generally irreversible.

[30] Further, the very fact that an application is made for an adult adoption order demonstrates that, at least for the people involved in the case, the legal status of parent is important. Otherwise they would not seek such an order. There are several other contexts in which the legal status of parenthood is important even when the "child" is an adult: wills, intestacies, income tax, and probably others. The adoption order could advertently or inadvertently irrevocably alter the parents' legal position.

[31] Additionally, the court is bound by the principles of fundamental fairness. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. Even more importantly, the court is bound by the Charter and obliged to ensure that the rights afforded to individuals under section 7 of the Charter, are not infringed arbitrarily. The importance of such principles was well articulated by the Manitoba Court of Appeal in the case of Walters v. Phillips, 63 Man. R. 6, [1955] 3 D.L.R. 840, 15 W.W.R. 104, 1955 Carswell Man 14. In that decision, Chief Justice John E. Adamson said at page 845 [D.L.R.]:

The right of the subject to notice, and the right to be heard before his liberty, property rights or family rights are disposed of by judicial proceedings, is fundamental to our jurisprudence. On this right, the reign of law is founded. Under our system, there can be no adjudication between parties without notice of the proceedings.

[32] Given the irrevocable effect the adoption will have on the parent's rights and legal position, it would be fundamentally unfair to grant an adult adoption order when no notice has been given to the person who prior to the granting of the order holds the legal status of parent of the person to be adopted.

[33] Another reason why the parent of the adult child should be given notice of the adoption relates to the criteria the court must apply in deciding whether to grant an adult adoption. As Justice Barry Tobin noted in his decision in the case of Re M.S.Z., 2010 ONCJ 423, 95 R.F.L. (6th) 233, [2010] O.J. No. 4000, 2010 Carswell Ont 7106, at paragraph [25], one of the criteria the court must consider when deciding whether to grant an adult adoption, is whether the adoption will advertently or inadvertently defeat the legitimate claim of the proposed adoptee's existing parents under other legislation also enacted for the public good. It would be unfair to decide this based solely on the evidence and submissions of the adoptee or applicant. There exists the risk that the court will not get the full or even a balanced picture. In deciding whether to grant the adoption and in particular in assessing this specific criterion, the participation of the parent would enable the court to decide the issue, and whether the adoption should be granted.

[34] In this case, the biological father falls within the category of those the Act defines as a parent. As such, his legal rights may be forever defeated if the adoption is granted. I have been given no evidence about the impact the adoption could have on the biological father's legal rights or affairs. Other than about his lack of involvement and the adoptee's desire not to give him notice, I have no evidence about him. Further, the biological father's input, particularly with respect to the issue of the impact the adoption will have on any legal rights and positions, will enable the court in deciding whether to grant the adoption.

[35] For all of these reasons, I find the biological father is a person whose voice should be heard. For this to happen he must receive notice of the adoption application, motion, and orders made in these proceedings.

Party Status as a means to effect Notice and Service

[36] The Ontario Court of Justice is a statutory court and as such the authority to give directions and make orders, including orders relating to notice and service, must be found within the applicable statutes and regulations. As there is nothing definitive in the Act that could serve as the locus for the authority to order notice be given to the biological father through service, it is necessary to turn to the Family Law Rules, O. Reg. 114/99 (the "Rules").

[37] Pursuant to subclause 7(3)(b)(ii) of the Rules, every person whose input will enable the court to decide all of the issues in the case, should be named as a party to the case. That subclause reads as follows:

7. (3) Persons who must be named as parties. — A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case. O. Reg. 114/99, r. 7(3).

[38] If the biological father is named a party, then pursuant to subrule 8(5), the applicant is required to serve him with the adoption application. That subrule states:

8.(5) Service of application. — The application shall be served immediately on every other party, and special service shall be used unless the party is listed in subrule (6). O. Reg. 114/99, r. 8(5).

[39] The problem in this case is that the applicant did not name the biological father as a party. As a result, the vehicle for the court to order notice and service so that the voice of the biological father may be heard, is to have the biological father added as a party. The court's authority to add parties is found in subrule 7(5), which reads as follows:

PARTY ADDED BY COURT ORDER

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person. O. Reg. 114/99, r. 7(5).

[40] This raises the issue of whether this court can exercise its power to add a party on its own initiative, or, whether a party or interested person must step forward to invoke it by way of a formal motion.

[41] This issue is unsettled. The neutral wording of subrule 7(5) is unusual and ambiguous in this respect. Ordinarily, wherever the Rules intend to emphasize the need for an external agent, they use the expression "on motion" — defined in subrule 2(1) as "on motion of a party or a person having an interest in the case". On the few occasions where the rules want to express the notion that the court itself can intervene without the need of a motion, they will use the term "on its own initiative". Subrule 7(5) uses neither. Hence the ambiguity.

[42] In Re Baby Boy A., 49 O.R. (2d) 44, 42 R.F.L. (2d) 221, [1984] O.J. No. 3413, 1984 Carswell Ont 297 (Ont. U.F.C.), Judge David M. Steinberg, finds that there is a vehicle for the biological father's voice to be heard and that is by adding him as a party [see paragraph 5]. In paragraphs 4 to 6 the court implies that the court could exercise this power on its own initiative. See also Koval's'kyj v. Cattan, Koval's'kyj and Cattan, 115 A.C.W.S. 3d 433, [2002] O.J. No. 2853, 2002 Carswell Ont 2442 (Ont. C.J.), per Justice Russell J. Otter, at paragraph 21.

[43] In the case of Butson v. Butson-Lacombe, 41 R.F.L. (2d) 222, [1984] O.J. No. 736, 1984 Carswell Ont 274 (Ont. U.F.C.), a payor applied to have certain arrears rescinded. The problem was that during part or all of the interval of accrual, the mother had been on welfare, during which she might have assigned her rights under the order to the Minister of Community and Social Services. Instead of adding the Minister as a party on his own initiative, Local Judge David M. Steinberg adjourned the payor's request with the direction that the payor serve notice of his application on the Ministry so that it might then make up its own mind whether to make a motion to be added as a party.

[44] In this case I have decided to take the initiative to add the biological father as a party. I have made this decision for several reasons. First, as I have intimated, it seems to me that it is only by adding a person as a party to an application that this statutory court acquires the jurisdiction necessary to order that notice be given by way of service of the adoption application.

[45] Second, it will save the time and expense of a further motion.

[46] Third, while doing so will afford him all of the rights of a party, it does not make the biological father's consent to the adoption necessary. However, it will afford him standing to put evidence before me and to make submissions as to the impact the adoption may have on his legal rights and positions and on any other considerations relevant to this adoption.

[47] Fourth, it also means he will have all of the same obligations of a party. This is particularly important in adoption cases because such proceedings are confidential and subject to a publication ban. By making the biological father a party, I am able to ensure that he is bound to the publication ban and to impose consequences if he does not comply. Furthermore, by adding him as a party, he will be subject to the cost consequences if he makes frivolous or unmeritorious claims and positions or otherwise behaves unreasonably in these proceedings.

Notice of the Motion and Orders Made

[48] Having added the biological father as a party to the adoption application, he unequivocally falls within the class of persons who are parties to a motion and who are generally entitled to notice of the applicant's motion and to be served with the material in support of the motion, and any order that flows from it. This conclusion is evident from the wording in subrules 7(2), 14(3), and 14(11):

7. (2) Who are parties — Motion. — For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support. O. Reg. 114/99, r. 7(2).

14. (3) Parties to motion. — A person who is affected by a motion is also a party, for purposes of the motion only, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.

14 (11) – Motions with Notice - A party making a motion with notice shall, (a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date; (b) file the documents as soon as possible after service, but not later than two days before the motion date; and (c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date. O. Reg. 114/99, r. 14(11); O. Reg. 202/01, s. 4(2).

[49] As the outcome of the request to dispense with notice and service of the adoption application and motion to dispense with service of the order made on this motion, may affect the biological father's rights, I find him to be a party to the motion and thus, entitled to notice of the motion and to be served with motion materials.

Dispensing with Notice and Service

[50] The applicant moves for an order dispensing with notice and service of the within motion as well as with the order that flows from his motion, which is made without notice. He relies on subrules 14(12) [motions without notice] and 14(15) [orders made on motions without notice]. The grounds upon which the applicant relies include: the wishes of the applicant, the mother and the adult child; the fact that the adult child has had no contact with the biological father for many years; the lack of involvement on the part of the biological father in D's life for a dozen years or so; because the adult child sees the applicant as his father and the applicant sees the adult child as his son; and because the applicant does not wish to open "old wounds".

[51] Counsel submits that the court has broad discretion pursuant to subsection 136(2) to make an order dispensing with notice and service. That subsection directs (in part) that "where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:..". Those best interests, counsel submits, lie in allowing the adoption to proceed without having to notify the biological father.

[52] In my view, subsection 136(2) is of no assistance to me in deciding the issue of notice and service in the case at bar. First, the court is not determining the best interests of a child. Even if the court were to turn to those provisions dealing with notice and service in applications for adoption of minors, and apply the same principles to the adoption of adults, the same result would be reached — that notice and service of the 14B motion and adoption application must be given. In this regard, I rely on and follow the reasoning set out in the court's decision in K.C.F. v. M.W., 2016 ONCJ 689, 276 A.C.W.S. (3d) 623, [2017] W.D.F.L. 551, [2016] O.J. No. 6125, 2016 Carswell Ont 18677.

[53] In K.C.F. v. M.W., the court dealt with the same request as in this case, but in the context of an application to adopt a minor. The biological father had not been given notice of either the adoption or the motion to dispense with service and his consent to the adoption. A similar best interest argument was made. The conclusion I reached there, as I do here, is that best interests of the child and the wishes of and inconvenience to the applicant are not the determinative considerations. I found that parents are entitled to notice of the application for adoption and of any motions to dispense with notice or to dispense with their consent, unless the test to dispense with service is met and an order made accordingly. The considerations relevant to dispensing with service were, I found, similar to those found in subrule 6(16) of the Rules.

[54] Another possible source of direction to look to is clause 138(b) of the Act. In the case of M.L.H. v. W.G.A., 2009 ONCJ 719, 91 R.F.L. (6th) 213, [2009] O.J. No. 6215, 2009 Carswell Ont 9394 (Ont. C.J.), 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 should be dispensed with.

[55] Justice Kukurin did not find it necessary to turn to 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 in cases where there is a need to dispense with consent (which is not the circumstance in this case), the language of the alternative provided in the latter part of clause 138(b) of the Act gives the court authority to do away with the requirement of service of notice, if not explicitly, then implicitly. The problem is that clause 138(b) is restricted 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.

[56] As the biological father's consent to the adult adoption is not required in the instant case, section 138 is of no assistance. There is no other section of this Part of the Act that offers assistance in deciding these issues in adult adoptions. In the absence of such direction, the court must turn to the Rules. Rules 6 and 14 offer explicit direction about when motions may be made without notice and when the court may dispense with service.

[57] With respect to notice, subrule 14(12) sets out the circumstances where a motion may be made without notice to a party to the motion. It provides as follows:

(12) Motion without notice. — A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child's removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences. O. Reg. 114/99, r. 14(12).

[58] The evidence that the applicant has put forward does not support a finding that his motion should proceed without notice. There is no evidence of any kind of immediate danger, or that demonstrates service of notice would have serious consequences. The applicant specifically relies upon subclause 14(12)(a), however there is no evidence that notice is not reasonably possible or that it is not necessary (i.e., because the affected party is deceased, written consent to the relief has been given by the party entitled to notice, or the affected party has been given effective notice).

[59] With respect to dispensing with notice or service, subrule 6(16) provides that 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.

[60] In K.C.F. v. M.W., supra, the court set out in great detail what is expected of a litigant in terms of efforts to locate a person who is to be served and of the type of evidence the court would expect to have before it before granting an order to dispense with service at paragraphs [27] to [31].

[61] In this case, the applicant has put forward no evidence of efforts to locate and serve the biological father or of the results of those efforts. There is simply no legal basis under which I can grant an order dispensing with service.

[62] Having found that the criteria for a motion to be heard without notice and for dispensing with notice and service is not met, there is no reason for this court not to hold the applicant to the condition in subrule 14(15). That subrule directs that an order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise. I decline to exercise my discretion in favour of the applicant. Therefore, this decision and any issued order that flows from it are also to be served on the biological father, along with the adoption application.

Conclusion

[63] For all these reasons, I dismiss the applicant's 14B motion and direct that the biological father is to be given notice of the adoption application and of this decision by service of the adoption application, the 14B motion and supporting materials, and these reasons. This hearing will be adjourned to allow the applicant time to do this.

Other

[64] In an effort to assist the parties in moving forward with the adoption once the biological father has been served, I urge counsel to ensure that the evidence filed in support of the adoption application, addresses the criteria the court will apply in considering whether to grant the application for the adoption of this adult child. In its present state it seems quite deficient. By way of guidance, I offer the following.

[65] In the case of Re A.L.K.Q., supra, at paragraph [14], Justice Katarynych rejected the notion that adult adoptions are to be granted on demand. She also rejected the notion that the court has unfettered discretion to grant or withhold applications for the adoption of adults. She identified five "fundamental criteria" that came out of an earlier decision — the case of Re Proposed Adoption of Hannelore Johanna Martha J., 1 A.C.W.S. (3d) 274, [1986] W.D.F.L. 2055, 6 L.W.C.D. 455, [1986] O.J. No. 2186, 1986 Carswell Ont 1641 (Ont. Prov. Ct., Fam. Div.). Justice Katarynych subsequently rejected one of these five criteria. Three subsequent decisions, namely:

• Visser v. Stone, 129 A.C.W.S. (3d) 731, [2004] O.J. No. 1086, 2004 Carswell Ont 1043 (Ont. Fam. Ct.);

• Re M.S.Z., supra; and most recently,

• Re Macbeth, 2013 ONSC 3252, 34 R.F.L. (7th) 452, [2013] O.J. No. 2516, 2013 Carswell Ont 7382, a decision of Justice Joseph R. Henderson of the Family Court branch of the Superior Court of Justice,

adopted the reasoning set out in Re A.L.K.Q., and confirmed the four applicable criteria.

[66] At paragraph [12] of the court's decision in Re Macbeth, Justice Henderson articulated the four criteria as follows:

[12] Having reviewed all of those cases, I find that the four criteria for the adoption of an adult independent person are as follows:

(1) The adoption would create an actual (not just legal) change in the relationship between the applicant and the proposed adoptee;

(2) Both parties are aware of the legal incidents of adoption, and intend those incidents to govern their new relationship;

(3) The application is motivated by the psychological and emotional need of the proposed adoptee for a new parent or for a parent to "fill the gap" in the parenting of the proposed adoptee; and,

(4) The relationship between the applicant and the proposed adoptee would be "enhanced and strengthened" by the adoption order.

[67] Although not commented on by Justice Henderson in Re Macbeth, in the case of Re M.S.Z., at paragraph [25], Justice Barry Tobin added these four additional factors to the list of considerations.

[25] With that conclusion, I find that four other factors loom large in the adjudication:

1. Whether the interaction between the applicant and the proposed adoptee is materially and substantially a parent-and-child interaction, assessed not just subjectively by the two individuals at issue, but also from an objective perspective;

2. whether the parent-and-child relationship between the applicant and the proposed adoptee has any counterpart in any of the proposed adoptee's other relationships; in short, whether an adoption is merely adding a parent to the adult child's life or rather replacing a former parent;

3. whether the adoption will advertently or inadvertently defeat the legitimate claim of the proposed adoptee's existing parents under other legislation also enacted for the public good and

4. whether the application is made in good faith.

ORDER

1. The applicant's 14B motion is dismissed.

2. The biological father is added as a party to this adoption.

3. The biological father is to be served with a copy of the adoption application, the 14B motion and supporting materials, and a copy of this decision and reasons. If a formal order is issued, he is to also be served with a copy of the issued order.

4. The biological father shall have 30 days from the date of service to serve and file his answer, if any. In filing an answer, he shall use Form 10. The applicant shall have 10 days from the date of service of any answer within which to serve and file any reply.

5. If no answer is filed by the biological father within the 30 days immediately following the effective date of service, the applicant may request that the adoption be decided based solely on the written material filed in the adoption record. If the biological father serves and files an answer, on request of the biological father or the applicant, the court shall set a hearing date.

6. This adoption hearing is adjourned.

Released: April 9, 2018

Signed: "Justice Victoria Starr"

Footnotes

[1] "Parent" being those who meet the definition of parent under the Act.

[2] For a more detailed analysis along these lines, see also K.C.F. v. M.W., 2016 ONCJ 689, 276 A.C.W.S. (3d) 623, [2017] W.D.F.L. 551, [2016] O.J. No. 6125, 2016 Carswell Ont 18677, at paragraphs [15]-[19].

[3] In the end, however, the court declined to do so.

[4] See paragraph [20] to [26] in K.C.F. v. M.W., supra.