WARNING This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows: 45(8) PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. 76(11) PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society. 85(3) OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

INTRODUCTION

[ 1 ] At the time of the adoption hearing of this matter, the potential adoptee, M.N.S, was a 13-year-old Jamaican child attending school in Ontario. In the normal course, the request for a relative adoption of the child by her maternal aunt and uncle would be routine. What is unusual in this matter are the issues for determination, namely:

(1) Was the 13-year-old a resident of Ontario at the time of the application for adoption?

(2) Did the parties involved intend this adoption to be an "accommodation adoption”?

RELEVANT FACTS

[ 2 ] M.N.S. was born in Kingston, Jamaica. Her biological mother and father continue to reside in Jamaica. Prior to her visit to Ontario, she attended school in Jamaica.

[ 3 ] The applicants, J.K.D. and L.D., reside in Barrie, Ontario and have six children. Janet is M.N.S.’s maternal aunt and has had a close relationship with M.N.S. since her birth, providing her with financial assistance, regularly communicating with the child by telephone and regularly visiting with the child in Jamaica.

[ 4 ] On July 11, 2008, M.N.S. applied for a visitor visa. The 2008 application included:

(a) A letter from the acting principal of St. George's girls’ primary infant school, Kingston, Jamaica, dated June 26, 2008, stating that M.N.S. was a Grade Four student and scheduled to return to school in September 2008.

(b) A letter from M.N.S.’s biological parents stating that they gave M.N.S.’s godfather the authority to take her on a summer trip to spend time with him and his family in Canada, from August 4 to August 22, 2008, and that M.N.S. would return home to Jamaica at the end of her trip in August of 2008.

(c) Itinerary of the godfather and M.N.S. noting that her return flight was on August 16, 2008.

[ 5 ] A visa was issued on July 16, 2008. The authorized period of stay for M.N.S. in Canada was for six months and her visitor status was to expire on March 12, 2009. However, the visa could be used by M.N.S. at a Canadian port of entry until July 17, 2010, at which time the visitor visa expired.

[ 6 ] M.N.S. arrived in Ontario on August 12, 2008, as a visitor at the age of 11. She has resided in Ontario with the applicants since that date. Her status was not extended beyond March 12, 2009, and technically, commencing March, 12, 2009, M.N.S. had no legal status in Canada.

[ 7 ] According to the child, the day before she had to leave, she asked the applicants to stay with them. Since August 16, 2008, M.N.S. considers herself a member of the applicants’ household and her clear and consistent wishes and preferences are to be adopted by the applicants.

[ 8 ] On September 21, 2009, the applicants applied for custody of M.N.S. pursuant to the Children's Law Reform Act , R.S.O. 1990, c. C.12 (“CLRA”). This application for custody was accompanied by consents from the biological mother and the biological father, both residents of Jamaica.

[ 9 ] On January 27, 2010, Wildman J. made a final order granting the applicants custody of M.N.S.

[ 10 ] On April 12, 2010, the adoption application was issued to adopt M.N.S., with the consent of the biological parents and M.N.S.

[ 11 ] As the applicant, J.D. was under the mistaken belief that M.N.S.’s temporary residence expired on or about July 17, 2010, she applied for an extension of M.N.S.’s temporary residence status on or about July 6, 2010.

[ 12 ] On October 20, 2010, M.N.S.’s application for restoration of the temporary residence status and visitor visa was refused. The refusal letter informed M.N.S. that she was a person in Canada without legal status and, as such, she was required to leave Canada immediately. The letter stated that if she did not leave Canada voluntarily, enforcement action may be taken against her.

M.N.S.

[ 13 ] Since August of 2008, M.N.S. telephones her biological mother two to three times per month.

[ 14 ] She currently attends school in Ontario. She likes school. She has been both a library helper and a kindergarten helper, and, at the time of the hearing was a student body representative. She also plays flag football.

[ 15 ] She has three best friends in Ontario. They go to each other’s homes and have sleepovers.

[ 16 ] The applicants’ house is reported as being spacious. M.N.S. has her own bedroom.

[ 17 ] The child’s views and preferences have been presented through her legal representative, the Office of the Children’s Lawyer (“OCL”).

[ 18 ] Further the child’s integration into the applicants’ family and community was reported by way of a thorough investigation/assessment conducted pursuant to s. 149(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). The assessor strongly recommended the adoption of M.N.S. by the applicants as being in the child’s best interests.

RELEVANT LEGISLATION

[ 19 ] Section 146 of the CFSA states inter alia:

Orders for adoption.

Family adoption.

(2) The court may make an order for the adoption of a child, in the child’s best interests, on the application of,

(a) a relative of the child;

(b) the child’s parent; or

(c) the spouse of the child’s parent.

Who may apply

(4) An application under this section may only be made,

(a) by one individual; or

(b) jointly, by two individuals who are spouses of one another.

Residency requirement

(5) The court shall not make an order under this section for the adoption of, or on the application of, a person who is not a resident of Ontario.

[emphasis added]

Status of adopted child

158. (1) In this section,

“adopted child” means a person who was adopted in Ontario.

Same

(2) For all purposes of law, as of the date of the making of an adoption order,

(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and

(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.

How relationships determined

(3) The relationship to one another of all persons, including the adopted child, the adoptive parent, the kindred of the adoptive parent, the parent before the adoption order was made and the kindred of that former parent shall for all purposes be determined in accordance with subsection (2).

DISCUSSION OF RELEVANT LEGISLATION

[ 20 ] In this case there is no issue that the maternal aunt and uncle qualify as relatives of the child and, as such, could apply, without the need of an assessment, to adopt the child.

[ 21 ] However, given the child’s visit and prolonged stay, the issue of her residency must be addressed pursuant to s. 146(5) of the CFSA .

CASE LAW RE: RESIDENCY

A. Re Khan (1978), 1978 1672 (ON CA) , 21 O.R. (2d) 748 (C.A.)

[ 22 ] The appellants sought an order for the adoption of the male appellant’s younger brother, who was 18 and in Canada on a visitor’s permit. He arrived in Canada in August 7, 1976, ostensibly as a visitor, and the appellants started the application to adopt him on September 3, 1976. The judge had refused the application. In dismissing the appeal, the court stated with respect to residency as follows:

…( 2) Section 71 of the Child Welfare Act , R.S.O. 1970, c. 64, requires the child to be "resident" in this Province for the purposes of an adoption order. We do not think that someone here on a visitor's permit fulfils that requirement of residence…

B. J.B. v. C.W.S. , [1996] O.J. No. 186 (C.J. (Gen. Div.))

[ 23 ] Steinberg J. allowed an application for an order dispensing with the Respondent Father’s consent to the adoption of his child by the applicants. His Honour considered the child’s residency under s. 146(5) and found that since the child had acquired the Ontario domicile under s. 67 (c) of the Family Law Act , RSO 1990, c. F.3, the court had adoption jurisdiction under s. 146(5). Essentially the child living in the applicant’s domicile made the child an open resident of Ontario under s. 146(5) :

12 ...Where the residency of the child with a person other his parent is of such a quality that it has created a fresh domicile for him, it should be sufficient to clothe the court with adoption jurisdiction under subsection 146(5) of the Child and Family Services Act .

[ 24 ] Steinberg J. also cited s. 67 of the Family Law Act , R.S.O. 1990, c. F.3, which reads as follows:

67. The domicile of a person who is a minor is,

(a) if the minor habitually resides with both parents and the parents have a common domicile, that domicile;

(b) if the minor habitually resides with one parent only, that parent’s domicile;

(c) if the minor resides with another person who has lawful custody of him or her, that person’s domicile; or

(d) if the minor’s domicile cannot be determined under clause (a), (b) or (c), the jurisdiction with which the minor has the closest connection.

C. C.T.A. (Re) , 2010 ONSC 2222

[ 25 ] MacKinnon J. considered whether the potential adoptee was an Ontario resident as required by s. 146(5) of the CFSA . The potential adoptee C.T.A. was a foster child of the applicants. C.T.A. developed a close relationship with the applicants. C.T.A. continued to reside in the Philippines with a visit from the applicants in 2003 and a visit to the applicants in Ontario two years later. In February 2007, the applicants invited C.T.A. to come to Ontario to study. C.T.A. accepted, and, at the time the application, had resided in Ontario since February 2007. C.T.A. and her parents filed affidavits in support of and consenting to the proposed adoption.

[ 26 ] Mackinnon J. adopted the Court of Appeal’s definition of “residence” in Re Rai (1980), 1980 1644 (ON CA) , 27 O.R. (2d) 425, and, applying that definition, found that C.T.A. was a resident of Ontario:

4 The word “residence” does not have a single, legal definition. It is considered to pose a question of fact to be determined in the context of specific legislation.

[ 27 ] Justice Mackinnon cited the Court of Appeal’s residency definition at pp. 5-6 as follows:

Residence is not established by mere presence in the Province on a casual visit, or while passing through…But, apart from exceptional cases, the purpose of the statutory requirement of residence will have been met if there is a reasonable connection between the child and Ontario, and if the child has lived here for sufficient time to enable an effective investigation to be made into the suitability of the adopting parents and whether the proposed adoption order would be in the best interests of the child.

[ 28 ] The court in the Re Rai decision seems to have reversed Re Khan in allowing for the possibility that the residence requirement could be satisfied by someone on a visitor’s visa if there is a reasonable connection between the child and Ontario.

IS THE CHILD A RESIDENT?

[ 29 ] Similar to J.B. v. C.W.S., M.N.S. has lived with the applicants for four years. It is clear that M.N.S. has taken on the Ontario domicile of the applicants under clause 67 (c) of the Family Law Act .

[ 30 ] Further, despite the child’s immigration status, taking into account the factors outlined in C.T.A and Re Rai , there is a reasonable connection between M.N.S. and Ontario. M.N.S. requested to be adopted by her aunt. M.N.S. had a relationship with her aunt for many years as a result of her aunt’s visits to Jamaica, her weekly telephone calls to Jamaica and ultimately M.N.S.’s visit to her aunt and uncle. The applicants obtained an Ontario custody order one year in advance of the application for adoption, on consent of the biological parents of M.N.S. M.N.S. was totally integrated into the prospective adoptive family and into the community. She is attached to her cousins and views them as her siblings. Despite the fact that she has telephone contact with her birth mother, she refers to her aunt as “Ma”.

[ 31 ] Further, M.N.S. has lived in Ontario for a sufficient time to enable an effective investigation into the suitability of the applicants and whether the proposed adoption would be in M.N.S.’s best interests. The Director’s report pursuant to s. 149(6) of the CFSA supports the adoption and the child’s lawyer through the OCL repeats the request made by M.N.S. of her wish to be adopted.

[ 32 ] As a 13-year-old, M.N.S. is an intelligent bright young girl who embraced her aunt and uncle as mother and father and her cousins as siblings.

[ 33 ] Similar to the potential adoptee in C.T.A. , M.N.S. is no longer a mere visitor, notwithstanding her technical status under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA”). She has lived in Ontario since August of 2008, attending school during this time, becoming a leader in her school and having close relationships with her classmates and teachers.

[ 34 ] Pursuant to s. 146(5) of the CFSA , M.N.S is found to be a resident of Ontario for the purposes of an adoption application.

CONCLUSION

[ 58 ] Similar to the circumstances in C.T.A. , M.N.S. developed a relationship from birth with her prospective adoptive aunt, initially through frequent visits in Jamaica, and thereafter by a combination of visits and weekly telephone calls. M.N.S has lived with the applicants for four years and as such she has taken on the Canadian domicile of the applicants under clause 67 (c) of the Family Law Act .

[ 59 ] M.N.S. requested to be adopted by her aunt. She has totally integrated into the family and into the community. The Director’s report indicates full integration and appropriate attachment between the child and the potential adoptive parents, as well as with her cousins. Despite the fact that she has telephone contact with her birth mother, she refers to her aunt as “Ma”.

[ 60 ] M.N.S. has lived in Ontario for a sufficient amount of time to enable an effective investigation into the suitability of the applicants and whether the proposed adoption would be in M.N.S.’s best interests. The Director’s report totally supports the adoption.

[ 61 ] Similar to the potential adoptee C.T.A., M.N.S. is no longer a mere visitor, notwithstanding her technical status under IRPA . She has lived in Ontario since August of 2008, attending school during this time, being a leader in her school and having close relationships with her classmates and teachers.

[ 62 ] The Director’s Report indicates as follows:

“I believe J.D. and L.D. have made the necessary adjustments to accommodate the role as parents of M.N.S. Their love and commitment to her is obvious. As such, they are fully prepared to claim this child as their own and to meet her needs independently. M.N.S. is a mature teen whose needs are being met in every way and appears to have secure attachment with the D. family. Through discussion and agreement with J.D., L.D. and her mother, M.N.S. has chosen her adoptive name to be M.N.S. –D.”

[ 63 ] Despite M.N.S.’s immigration status, and given the fact that the applicants applied for permanent residency status for M.N.S. one year after they obtained a CLRA custody order, I am satisfied on the facts cited above that the application for adoption is bona fide and is not intended to be an “accommodation adoption”.

[ 64 ] Under any criteria as reflected in the CLRA and the CFSA , the best interests of this child dictates that she be adopted by the applicants.

[ 65 ] Order to go that the applicants, J.K.D. and L.D., adopt the child M.N.S.

OLAH, J.

Released: March 8, 2012