ONTARIO

SUPERIOR COURT OF JUSTICE – FAMILY COURT

ST. CATHARINES COURT FILE NO.: A24/12
DATE: 2013-06-03

IN THE MATTER OF THE PROPOSED ADOPTION OF M.O.M.

J.S.M.
Applicant

Kevin H. Robins for the Applicant

HEARD: April 26, 2013

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR JUDGMENT

[1] This is an application by J.S.M. (hereinafter called “the Applicant”) to adopt his step-daughter, M.O.M. (hereinafter called “M.O.M.”) pursuant to the provisions of the Child and Family Services Act (hereinafter called the “CFSA”). This decision deals with the uncommon request by an applicant to adopt an adult independent person.

[2] The Applicant was married to M.O.M.’s mother, R.M.M. (hereinafter called “R.M.M.”) on August 14, 2009. The Applicant is currently 66 years of age, and M.O.M. is currently 30 years of age. M.O.M. has never lived with the Applicant, but the evidence is clear that they have a strong step-father/step-daughter relationship.

[3] R.M.M. was married to M.O.M.’s natural father, A.C., (hereinafter called “A.C.”) in Kiev, Ukraine. M.O.M. was born to R.M.M. and A.C. on […], 1982, in Kiev. When R.M.M. divorced A.C. in 1990, M.O.M. remained in the custody of her mother and had very little contact with her natural father.

[4] R.M.M. and M.O.M. immigrated to Canada in 1995 when M.O.M. was 13 years of age. After the move to Canada, M.O.M.’s relationship with her natural father was almost non-existent. A.C. died on November 24, 2010.

[5] M.O.M. and R.M.M. lived together in the Toronto area until approximately 2005, when M.O.M. obtained her own residence. The Applicant came into the lives of R.M.M. and M.O.M. in 2007 when the Applicant and R.M.M. commenced their relationship. R.M.M. has now moved to Niagara-on-the-Lake where she resides with the Applicant.

[6] M.O.M. continues to live in Toronto, and on April 23, 2011, M.O.M. married D.R.D. They now have a young daughter, E., who was born on […], 2012.

[7] M.O.M. legally changed her name to M.O.M. on November 30, 2009. Further, M.O.M. has provided affidavit evidence, which I accept, that she considers the Applicant to be her true father.

THE LAW REGARDING ADULT ADOPTIONS

[8] The CFSA is the only statute in Ontario that authorizes an adoption. The CFSA clearly contemplates the adoption of an adult person, but the CFSA provides the court with no guidance as to the criteria for the adoption of an adult independent person.

[9] There have been a few court decisions that have dealt with this issue, and those decisions have resulted in the evolution of certain basic principles.

[10] The first prominent decision is that of Re H.J.M.J. 1986 3525 (ON CJ), [1986] O.J. No. 2186. The facts in that case are very different than the case before this court as Re H.J.M.J. did not deal with a step-parent adoption. In Re H.J.M.J. an 84-year-old widow sought to adopt a 44-year-old woman. The biological mother of the proposed adoptee was still alive and had an ongoing relationship with the adoptee. The primary value of the Re H.J.M.J. decision is that the case set out certain principles that were later more specifically identified in subsequent cases.

[11] In the case of Re A.Q. 1996 4748 (ON CJ), [1996] O.J. No. 353, at para. 14, Katarynych J. identified five “fundamental criteria” that came out of the Re H.J.M.J. case. Katarynych J. subsequently rejected one of these five criteria. Two subsequent decisions, namely Visser v. Stone 2004 14891 (ON SC), [2004] O.J. No. 1086 and Re M.S.Z. 2010 ONCJ 423, [2010] O.J. No. 4000, adopted the reasoning set out in Re A.Q. and confirmed the four applicable criteria.

[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.

ANALYSIS

[13] I have considered the four criteria set out above in light of the circumstances of the present case. In my view, the second and third criteria are easily made out in this case, while the first and fourth criteria require a more thorough review of the evidence.

[14] Regarding the second criterion, the evidence is very clear that the Applicant and M.O.M. are aware of the fact that an adoption order would not only create a family unit of the Applicant, R.M.M. and M.O.M., but would sever all familial ties between M.O.M. and her natural father and his family.

[15] I am satisfied that the Applicant and M.O.M. understand and accept the legal consequences of the adoption order. Moreover, as has been discussed in other cases, I find that given the poor relationship between A.C. and M.O.M., and A.C.’s recent death, there is no need for this court to be concerned about “protecting” M.O.M.’s relationship with her natural father.

[16] I also make the observation that in any application by a step-parent for the adoption of an adult step-child, it is likely that the second criterion would be satisfied because of the fact that there already exists a prima facie family relationship between the applicant and the adoptee. Therefore, a court could easily find that the applicant and adoptee understand and accept the legal incidents of an adoption order.

[17] Regarding the third criterion, I accept that there has always been a parental gap in M.O.M.’s life in the sense that she has had almost no relationship with her natural father. The evidence shows that the current relationship between the Applicant and M.O.M. has been a de facto father/daughter relationship that has assisted in filling that gap.

[18] The first and fourth criteria raise essentially the same question. Will the proposed adoption create an actual change in the relationship such that the relationship will be enhanced and strengthened? When this application was first before me I was concerned about these two factors. At that time I had only M.O.M.’s written consent to the adoption. I felt that before I could be satisfied of these two criteria, it was necessary for me to have evidence from M.O.M. as to the effect that this order might have on her. Consequently, the application was adjourned, and I have now received an affidavit from M.O.M.

[19] M.O.M.’s evidence, along with the evidence from the Applicant and R.M.M., leads me to conclude that the proposed adoption would in fact create an actual change that would enhance and strengthen the relationship between the Applicant and M.O.M.

[20] There is no doubt that the current relationship between the Applicant and M.O.M. is strong and healthy. M.O.M. considers the Applicant to be her true father and the Applicant considers M.O.M. to be his daughter. M.O.M. never had a true father figure in her life until her mother married the Applicant. Her relationship with her natural father was always poor to non-existent. The Applicant has filled the parenting gap in M.O.M.’s life, but I accept M.O.M.’s evidence that something is still missing.

[21] Now that the parent/child relationship has been formed, both the Applicant and M.O.M. request the blessing of this court to cement that relationship. The permanency of the adoption order would serve to strengthen and enhance the bond between them. That is, they request confirmation that their relationship will be something that cannot be terminated; it will be in place forever, during good times and bad. The order will give the family a sense of stability and wholeness.

[22] Further, I accept that the birth of M.O.M.’s daughter has served as a catalyst for this application. If the parent/child relationship between the Applicant and M.O.M. is formalized, the legal incidents of the adoption order will make E. the granddaughter of the Applicant. In that sense the entire family unit will be strengthened and enhanced by the proposed order.

[23] For these reasons, I find that the proposed adoption order would create an actual change in the relationship between the Applicant and M.O.M., such that the relationship would be enhanced and strengthened. Thus, all four of the criteria have been satisfied.

CONCLUSION

[24] In summary, I find that there are four criteria for the adoption of an adult independent person as discussed above. I find that in this case the Applicant has satisfied all four of these criteria. Accordingly, there will be an order that M.O.M. be adopted as the child of the Applicant.

Henderson, J.

Released: June 3, 2013

ST. CATHARINES COURT FILE NO.: A24/12

DATE: 2013-06-03

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

IN THE MATTER OF THE PROPOSED ADOPTION OF M.O.M.

J.S.M.

Applicant

REASONS FOR JUDGMENT

Henderson, J.

Released: June 3, 2013