COURT FILE NO.: FA-13-012
DATE: 2013/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF M.H.E., born XX-XX-2008
BETWEEN:
A. K.
Applicant
– and –
A. E.
Respondent
Gil D. Rumstein, for the Applicant
Chantel E. Carvallo, for the Respondent
HEARD at Ottawa: August 16, 2013
REASONS FOR JUDGMENT
Kane J.
[1] The applicant seeks an order dispensing with the consent of the biological father to an adoption under s. 138 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as am. ["CFSA"].
BACKGROUND
[2] The biological parents are originally from Morocco. They and the applicant are practising Muslims.
[3] The child H is currently 4 years of age. She was born in Canada and has always lived with her mother. H has never met her natural father.
[4] The respondent, his parents and siblings moved to and lived in Canada when he was a boy. As an adult, he travelled to Morocco where he met the mother. They were married shortly thereafter in January, 2007. Following the wedding, the mother remained in Morocco for eight months until she received permission from Canada immigration to move here and join her husband. They commenced living together in Canada in September, 2007. She was 20 years old at the time.
[5] Problems arose in the relationship. The respondent states the problems became apparent on the day of their wedding, were serious and did not improve. Divorce was considered within months after the marriage.
[6] The mother became pregnant with H in January, 2008. They went for a visit to Morocco in March or April of 2008. The respondent states that they, or he, decided they should remain and live in Morocco. He hoped the support of family and the more traditional customs there would assist he and his wife to overcome their difficulties. His wife disagreed. She wished to live in Canada.
[7] The respondent returned alone to Canada and obtained permission from his employer to a transfer of his employment as engineer to Morocco. The respondent then sent notice to terminate this couple's apartment lease effective the end of May, 2008. The wife knew of her husband's intention to live in Morocco and that he was back in Canada to arrange for their return to Morocco.
[8] The mother disputes any agreement to move to Morocco. She states she flew back to Canada on the scheduled date of her return. The wife received financial assistance from her family at the time of her return to Canada. She knew her husband was returning to Morocco and insisted that they live there.
[9] The respondent states that his wife without his knowledge flew west to Canada on May 8, 2008, the same day as he flew west to Morocco intending to find her there. The respondent initially did not believe and then was shocked by his wife's departure from Morocco timed to the day of his return. He told his wife and her family that should live in Morocco. The wife threatened she would blacken his name among the Ottawa-Gatineau Muslim community if they did not live in Canada. Each maintained their stated position and location. The wife thereupon adopted the position that she had been abandoned by her husband. The respondent felt betrayed and embarrassed that his expectant wife had acted in this manner.
[10] The mother spent the remaining months of her pregnancy and gave birth to H in Canada on September 20, 2008.
[11] The respondent brought divorce proceedings in Morocco. The divorce was granted in November, 2008. The mother did not participate in that proceeding. That court granted her custody of H with weekly access to the respondent. The respondent was therein ordered and has paid child support to OT.
[12] The applicant met OT and H in September, 2010. OT married the applicant in October, 2010. They have since had a child in 2012 and are now expecting the birth of a second child.
[13] The respondent continued to live in Morocco from May, 2008 until the summer or September of 2012 when he moved back to the Ottawa-Gatineau area. He then requested access to his daughter who he has never met. The mother refused access.
[14] The relevant sections of CFSA are sections 136 to 138 and read as follows:
Consents
- Consent of parent, etc.
(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.
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.
Best interests of the child under s. 138 (a) is defined by s. 136(2) which states:
Best interests of child
(2) 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:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
Any other relevant circumstance.
PRINCIPLES FROM JURISPRUDENCE
[15] Principles from jurisprudence as to dispensing with parental consent to an adoption include the following:
(1) The adopted child becomes the child of the adoptive parent and ceases to be the child of the biological parent. The adopted child ceases to be the relative of the former members of the parent's family. Adoption results in the final and irrevocable severance of the biological bond between parent and child; C. (M.A.) v. K. (M.), 2009 ONCJ 18, (2009), 94 O.R. (3d) 756, (Ont. C.J.)
(2) In considering the factors to determine the best interests of the child test under s. 136 (2), the court should balance what the child will gain and lose with emphasis on what the child will gain; the child's wishes, as best those can be ascertained and the child's existing family reality; Lott v. MacRae, 2005 7659. There must be "cogent" benefits to the child in order to terminate the blood relationship; R. (N.J.) v. M. (R.J.) (1994), 1994 18216 (ON CJ), 5 R.F.L. (4th) 375 (Ont. Prov. Div.)
(3) An order dispensing with parental consent should only be made in special circumstances and on the clearest possible evidence of benefit to the child resulting from such an order and evidence that detriment to the child would result if the order was refused. Consent will not be dispensed with unless there is some compelling reason such as abandonment, misconduct on the part of one parent, some real detriment to the child, or unless consent is refused out of vindictiveness or spite. The step-parent's onus is not met merely by showing that the interests of the child are enhanced by a new family relationship; Canadian Encyclopedic Digest, VIII - Adoption §1032.
(4) There is some controversy about granting adoption applications in step-parent situations. Such applications should not be used to "shore up" the new family; R.(N.J.) v. M (R.J.), supra.
(5) The exclusive focus is the child's best interest, not the rights of the natural parent. It is no longer necessary to find parental misconduct to dispense with a parent's consent to adoption; L. (S.I.) v. L (L.J.), 1985 707, L. (M) v. M (S), (1989), 13 A.C.W.S. (3rd) 259.
(6) Where the natural parent has shown a genuine interest in the child, even though separated, and the child has an emotional attachment to that parent, courts have been very reluctant to dispense with that parent's consent to adoption. Where the relationship with the child is non-existent, courts are more inclined to dispense with the natural parent's consent; Smith v. Harvey, (1974) 1974 2162 (ON CA), 19 R.F.L. 367 at 368 (Ont. H.C.), affirmed at [1975] O.J. No. 305 (Ont. C.A.).
(7) In the absence of a past relationship and contact between the child and the respondent parent, there is no loss of a meaningful and positive impact on the child if parental consent to adoption is dispensed with; L. (S.I) v. L. (L.J.), supra and J. (S.E.) v. C. (M.) (1994), 1994 3819 (ON CJ), 6 R.F.L. (4th) 41 (Ont. Prov. Div.).
(8) The parent and step-parent cannot use the adoption process to terminate the relationship between the child and the natural parent to eliminate difficulties that relations create for the custodial parent and stepparent. The court must be mindful of improper motive in the case of step-parent adoptions; Smith v. Harvey, supra.
(9) If the adoption application is made in the early and formative stage of a new marriage or union, the courts should assessing the stability and permanence of the relationship between the step-parent and the other parent before extinguishing a biological parent's relationship with a child; Pennington, Re (1980), 1980 4362 (NS SC), 40 N.S.R. (2d) 373 (N.S. Co. Ct.).
(10) The advantages of adoption identified by the courts includes continuity of care, a positive relationship between the child an adopting parent, the similarity in family name, security at home in a family unit, benefit of stability in an inheritance or upon the death of a biological parent, confirmation of the reality of who is doing the parenting and reaffirmation of sibling relationships versus unknown, future or unlikely benefits from the biological parent; C (P.) v. C. (P.C), 2004 ONCJ 130, (O.C.J.) and S. (J.C.) v. S. (C.B.R.) 2011 CarswellOnt 2845 (O.C.J.).
(11) The advantage of dispensing with consent includes the elimination of possible interference by the respondent in the parenting and stability of the child by the step-parent and custodial parent; C.M.B. (Re), 2008 ABQB 564, 2008 A.B.Q.B. 564.
(12) The rate of divorce, subsequent new parental relationships and the common unification of two families with children in today's society diminishes the risk a child will be stigmatized or emotionally harmed unless contact with a biological parent is terminated and or his or her family name is different than the adopting parent; C.M.B. (Re), supra.
(13) Courts on occasion have concluded that a child's best interest consists of the continuation of the love, care and effective parenting by the step-parent plus the love and financial support of the biological parent; C.M.B. (Re), supra.
(14) What is lost by an order dispensing with adoption consent in some cases includes the opportunity to re-establish a relationship with that biological parent, unless and until it is pursued at a later age; S. (J.C.) v. S. (C.B.R.), supra.
(15) If available, courts carefully consider the expressed wishes of the child regarding adoption by the applicant.
[16] The respondent is a graduate engineer. He has been so employed throughout. There are no allegations of substance abuse or criminal activity on his part.
[17] Supported by this mother, the applicant seeks this order for the following reasons:
(1) The respondent and H have never met as he elected to not be part of her life since birth.
(2) The applicant considers H as his daughter and part of his family. He has fully and positively cared for her like a father since October, 2010. H calls the respondent daddy.
(3) The respondent's family law application for access with H is being opposed by the mother. Contested litigation will lead to turmoil, costs and disruption to the mother and her immediate family.
[18] It is easy on these facts to argue that the respondent has been absent from and therefore did not care about his daughter H for four years. His absence it is argued is therefore determinative of this motion. That alone is not determinative of what are the best interests of H under s. 136.
[19] Is it harmful to introduce this child to her natural father at age four? The applicant replies yes and states that he and OT are opposed to access by the respondent. He states that acrimony and access litigation will result causing turmoil to himself and OT.
[20] There are certain realities in our society that this court is entitled to consider.
[21] Generally, North American separated parents are very comfortable introducing a new partner to their children, regardless of the child's age. Presumably, most separated parents are anxious that their child meet and benefit, along with the custodial parent, from what the new partner has to offer. In other words, the child potentially will gain from the positive things this new partner can provide the child. This mother in her affidavit expressed no reservations or difficulty with her introduction of H to the applicant, or explaining to H the applicant's increasing presence in the child's life. Young children are often happy and flexible when they see their custodial parent happy.
[22] The high rate of divorce in North America, which it has been argued parallels our disposable attitude, should not be reinforced by a casual grant of orders dispensing with parental consent to adoption. Dispensing with consent in anticipation of an upcoming adoption does not rewrite history. The respondent and H's mother at one time were married. H is their biological child.
[23] There are adopted children who struggle to understand why their biological parent(s) are not part of their lives or why that parent has abandoned them. Many adoptive parents feel an obligation to not mislead and therefore reveal the adoption to the child.
[24] Children today of separated parents are not isolated or made to feel inferior because they live with one rather than two parents, or have a step-parent. This is a current and common reality in our society.
[25] Introduction of the respondent to H at four years of age is not the legal issue.
[26] Determining best interest often requires consideration of whether the child opposes or consents to the biological parent should be severed legally as the child's parent in anticipation of an intended adoption. The answer to that question in the case of an infant or a four year old is an unknown and a court may not speculate. The position of the child if available however reinforces the high threshold the applicant must meet. The issue is the legal elimination of a child's natural parent. Opposition by the applicant and OT are but one consideration.
[27] An order under s. 138 disposing of parental consent should be the exception, namely only where the best interests of the child clearly dictate that outcome.
[28] There is no evidence to contradict the applicant being anything other than a positive loving adult to H or his willing assumption of parental responsibility towards her care during the last two years. H and her mother are the beneficiaries of the applicant's love, support and attachment to this child. He formed that bond to H and provided this care without his adoption of the child. There is no suggestion that his care and love of H is conditional to the right of adoption. His care of and attachment to H is not therefore a benefit in favour of granting this order.
[29] The applicant and the mother cannot use their opposition of access as a benefit to H warranting the order sought. H was born of the previous marriage between the respondent and this mother. The applicant married OT who had a daughter from a previous marriage. OT and the respondent are and will remain H's biological parents. The preference or opposition of the applicant and the mother are not determinative of what is in the child's best interests.
[30] The respondent's biggest obstacle is his four year absence since birth and his lack of involvement in H's life.
[31] A reduced absence is to be expected and does not constitute fault where the residence of the biological separated parents are in different parts of the world. This father however did not come back to Canada for the birth nor did he come here since then to see H. He has not for example communicated by Skype or sent this child gifts on commemorative occasions. He does however point to his family members who have had such contact with H.
[32] The respondent sent OT his Moroccan coordinates in July, 2008. In this email, the respondent expresses the wish that they can have a cordial relationship. He asked for but was not given her coordinates. OT had her own apartment by June or July, 2008.
[33] The respondent emailed the mother on July 31, 2008, requesting OT to not deny him his rights as a father of their soon to be born child.
[34] The respondent emailed OT in October, 2008 and expressed concern that they needed to communicate and agree upon how best to raise their child. OT cannot remember if she responded to that request.
[35] The respondent acknowledged his position as the father of H in his Moroccan divorce proceeding in November, 2008 and has paid child support since then. That same Moroccan court on the application of the mother increased the amount of child support in March, 2012.
[36] The respondent in 2009 through a lawyer placed his name and coordinates on record with the Ottawa CAS should the child ever be reported at risk.
[37] The respondent alleges he opened an educational savings account for H in Morocco and has been contributing towards it.
[38] These parents and the applicant came to Canada from another country and culture. The present issue is to be determined in accordance with the laws of Canada and not by Moroccan cultural or by religious beliefs. These cultural and religious beliefs can however be informative in understanding past conduct.
[39] Both parties admit theirs was a troubled relationship from the beginning.
[40] The evidence suggests that traditional marriage in the Moroccan culture in 2008 often involved the husband having the final decision involving family members and matters. Emails by the respondent subsequent to their separation evidence the respondent's belief in that tradition. OT did not accept this.
[41] The respondent initially expressed shock and anger with his wife's departure in May, 2008 to Canada. His emails express him being insulted and angry that his expectant wife, despite their difficulties, abandoned his plan and decision to return and live in Morocco.
[42] None of the emails, as argued, from OT express her surprise that the respondent had returned on May 8, 2008 to live in Morocco.
[43] There were prolonged arguments and involvement of family members following the birth of H as to what the child's first name would be. The parents disagreed on a name. The respondent believed that Moroccan tradition dictated that he had the final decision. The mother disagreed and included her choice of a first name on the child's Ontario birth declaration. The father gave his preferred name to the Moroccan divorce court. During email exchanges on this subject, one of the mother's family members told the respondent to prepare for battle. The respondent was offended.
[44] The mother signed and filed the Ontario birth certificate declaration on January 5, 2009, and did not disclose who the father was. She justified this omission in her affidavit by suggesting that she culturally was required to obtain the respondent's prior permission to identify him as the father. I doubt this explanation. She signed this birth declaration two months after the Moroccan divorce decree which identified the respondent as the father of H, granted the father access and obliging his payment of child support. The truth is that OT and the respondent were involved in a serious argument in January, 2009, as to what H's first name should be and the mother chose to not identify the father.
[45] The mother acknowledges that she told officials at H's school that she did not know the child's father. The respondent contacted that school to obtain information about his daughter. He expressed concern to the mother about the school to be attended and committed to financially support attendance at a better school. The mother translates this as a fear the respondent will take the child. Rather than attempting to abscond the child, the respondent brought court proceedings in the fall of 2012, first in Quebec where this mother use to live and then in Ottawa, seeking access. The mother defended both proceedings.
[46] The mother visited Morocco once in 2009 and 2010. The respondent was advised he could attend a family meeting to meet his infant daughter. On both occasions he chose not to. He stated he did not attend in 2009 as friction towards him by the mother's brothers was too high.
[47] The respondent's family have meet H. The maternal grandmothers have continued contact with one another. Their efforts caused the sharing of information about and pictures of H to the respondent and his family.
[48] The respondent moved back to Canada mid-2012. He contacted the mother, her family members and asked to see H. He then learned that OT and the applicant were married. The respondent understood through the grandmothers that he would be permitted to visit his daughter. The mother refused his requests. He asked a friend and two Imams to mediate the issue but their initiatives were refused by the mother.
[49] The applicant and OT had a child together in late November, 2012. The applicant posted a picture of his new born on Facebook along with a picture of H who he referred to as his daughter. The respondent took objection to the respondent publicly declaring he was H's father. He also felt that was forbidden under the Muslim religion.
[50] The applicant via email instructed the respondent to cease any further communication with the mother, stated that he and OT intended to pursue legal action involving H and that the applicant would use all means to stop the respondent's intrusion in his family. This motion and the respondent's access motions are the result.
[51] Whether or not access should be granted is not before this court. The sole issue is whether the respondent's consent to adoption be eliminated which would however defeat the respondent's right to access.
[52] Multiple competing affidavits from several Imams have been filed as to whether an adoption of this child will have a negative religious or cultural impact on H. I refuse to enter that debate. The affidavits filed are contradictory on the point. The issue before the court is one of interpretation of this legislation in light of the evidence. This issue is not the interpretation of Ontario law through a religious lens.
[53] Beyond aboriginal Canadians, this country's population is composed of past and recent immigrants who have brought their languages, cultures and religions to this country. Not all of those imported traditions and religious beliefs are compatible to the laws in Canada. The parties in their youthful enthusiasm and respect for their historical traditions and beliefs have yet to learn that some of those must be adjusted to comply with Canadian laws.
[54] Counsel for the applicant acknowledges that if H is adopted by his client, that will terminate the respondent's obligation to pay child support. This court was advised that following their marriage in October, 2010, the applicant initially worked in Montreal and commuted to Ottawa on the weekend. He recently commenced employment in Ottawa. This currently remains a new marriage between OT and the applicant. Termination now of the respondent's obligation to pay child support is not currently in the best interest of H.
[55] The applicant has not convinced this court that there is strong benefit to H, or obviously in her best interests, that her father's consent to her adoption be deleted. The respondent has shown a commitment since birth, although limited, in his relationship to H. The respondent has shown a wish and effort on the eve of her birth and over the last year to be involved in her life.
[56] Pride and culture or religious beliefs have got the better of the respondent at times. He has never however denied his paternity or avoided his financial responsibilities towards H. He has repeatedly attempted over the last year to gain access and be in a relationship with H. There is no evidence that he represents harm or a negative influence to H.
[57] Based on the above considerations, it is not in H's best interests to have his consent to an adoption dispensed with.
[58] This motion therefore is denied.
[59] I will make a decision as to costs if requested but pose the question to the parties whether pursuing costs is currently in the best interests of H.
Kane J.
Released: August 22, 2013
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF M.H.E., born XX-XX- 2008
BETWEEN:
A. K.
Applicant
– and –
A. E.
Respondent
REASONS FOR JUDGMENT
Kane J.
Released: August 22, 2013