COURT FILE NO.: F 1643/13

DATE: February 10, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: L.M.H. and P.M.C., applicants

AND:

L.K.N. and P.J.K., respondents

BEFORE: MITROW J.

COUNSEL: Hamoody Hassan, for the applicants

No one appearing for the respondents

HEARD: December 13, 2013

ENDORSEMENT

[1] Given the unusual aspects of this case my endorsement dated December 13, 2013 requested some affidavit evidence from the applicants, including the original police records checks and all information/documents regarding the CAS records checks and a copy of the “adoption study”.

[2] Pursuant to this endorsement, Mr. Hassan delivered further affidavit material consisting of an affidavit from each of the applicants.

[3] For reasons that follow, some additional matters need to be addressed.

[4] The respondents are apparently the biological parents of the child C.P.C.N. (“the child”) born […], 2013 and they reside in Nunavut where the child was born.

[5] The applicants became involved with the respondents because the applicant L.M.H. (sometimes referred to as “L.M.H.”) was a long-time friend and acquaintance of a person who is the adoptive mother of the respondents’ older child. There is no evidence from this “adoptive mother” corroborating any of this information.

[6] The applicants had been interested in adopting a child. Contact was made in the summer of 2013 between L.M.H. and the respondent mother during which time they “worked out the terms of the adoption”. The evidence suggests that some arrangement or agreement was made between the applicants and the respondents that the applicants would take custody of the child and would eventually adopt the child.

[7] The evidence indicates that several days after the child was born that the applicants attended in Nunavut, took custody of the child and returned home to London, Ontario with the new-born infant.

[8] The evidence from the applicants is that they were apparently “confused” about the adoption process. They thought that they could bring the child to London and then regularize the adoption later. The applicants blame a “professional” who gave them “erroneous advice”. The applicants admit that they thought that they could bring the child home from Nunavut to London and then the adoption could proceed promptly under the Child and Family Services Act.

[9] The applicants now refer to having to wait two years before they can formalize the adoption process (presumably referring to the two-year period set out in subsection 146(1)(b) of The Child and Family Services Act. The applicants depose that the child’s mother and father (the respondents) were in agreement with this eventual adoption plan, that the respondents approved of the applicants and that the respondent mother attended at the airport to deliver the new born infant into the applicants’ care. At that time the respondent mother provided the applicants with a “letter of custody”. This letter attached as an exhibit to L.M.H.’s affidavit states that the respondent mother is giving temporary care and custody of her child to the applicants. This letter is apparently signed by the respondent mother, both applicants and a witness. It is unclear on the evidence who actually wrote the letter. There is no signature from the respondent father.

[10] The applicants retained Elly Freund-Bell MSW, RSW. She prepared a report and this document dated November 21, 2013 is attached as Exhibit F to L.M.H.’s affidavit. The report is positive and makes a recommendation that the applicants be accepted as “guardians and be granted custody” of the child. The report concludes that there was no dispute with regard to custody and that the birth parents support this placement and have indicated their future support for this child to be adopted by the applicants “according to the rules and requirements of the province of Ontario”.

[11] It is noted, however, that Ms. Freund-Bell’s report makes no mention as to any contact with the respondent parents to verify any of the information. Of a somewhat concerning nature, Ms. Freund-Bell’s report indicates that the applicants were soon contacted by the respondent mother as apparently social services were contacting her asking about the baby’s situation. This resulted in the applicants being contacted by the Children’s Aid Society of London and Middlesex (the “Society”), as apparently the Society had been contacted by Nunavut Social Services and the R.C.M.P. (according to Ms. Freund-Bell’s report) requiring the child to be apprehended from the applicants and returned to Nunavut. The report then indicates that the Society began a child protection investigation, did not have any concerns about the child’s safety and as a result was unable to apprehend the child under Ontario law.

[12] The applicants then prepared the present court application for custody that was issued on November 5, 2013. The affidavit of service indicates that the respondent parents were served via courier service by forwarding the court documents to a post office box in “Qikiqtarjuaq” in the territory of Nunavut, (with this post office box apparently being used by both respondents to receive regular mail and courier packages).

[13] Accompanying the documents that were served was a covering letter from Mr. Hassan dated November 7, 2013 listing various documents enclosed including a consent for a final order awarding custody of the child to the applicants.

[14] The applicants depose that the respondents must have received the court documents because the consent (that had been forwarded along with the court documents) was received by Mr. Hassan in early December 2013 and was signed by both of the respondents. This consent is filed a Tab 6 of the continuing record. The consent sets out the terms of the proposed court order and is signed by both applicants on November 4, 2013 at London and apparently was signed at Qikiqtarjuaq by the respondents on November 20, 2013. There were no witnesses to any of the signatures on the consent, and importantly, no witnesses to the signatures of the respondents.

[15] The proposed draft final order submitted by the applicants includes a provision that the service of the within application on the respondents by courier is approved “nunc pro tunc”.

[16] The evidence of the applicants is that there has been some ongoing contact between one or more of the applicants and at least the respondent mother, and that the respondents continue to support the court order for custody in favour of the applicants with eventual adoption by the applicants.

[17] The evidence of the applicants, and this is corroborated by Ms. Freund-Bell’s report, is that the applicants are cognizant of the cultural heritage of the child and that the applicants will ensure that the child is raised with an understanding of his cultural heritage.

CONCERNS

[18] I have concerns regarding the lack of personal service. These concerns arise from the lack of any independent confirmation that the respondents have actually received the court documents. The entire process of the applicants travelling to Nunavut to receive the new-born infant from the mother, with no formal documents being prepared and with only a hand-written consent signed by only the mother (and not the father), is, prima facie, quite troubling.

[19] It is unclear why arrangements were not made to effect personal service given the usual circumstances that include the applicants leaving with the respondents’ infant child within days after the child was born, and given the nature of the relief sought.

[20] There is no evidence on the record to suggest why personal service could not have been effected notwithstanding that the respondents live in a remote community. For example, it may have been possible to effect personal service through a child welfare agency or perhaps arrangements could have been made to have the respondents attend at a certain location where they would be personally served with the documents.

[21] The order below addresses the matter of personal service.

[22] The evidence indicates that L.M.H. has in the past been known by the name of FL.M.O.. The original police records check is only in the name of L.M.H.. A further police records check needs to be obtained for the other surname.

[23] Given the aforementioned very unusual circumstances, there should be some independent evidence before the court corroborating that the respondents are in fact the biological parents of the child. The child’s birth certificate or statement of live birth should be obtained and filed with this court.

[24] The information contained in the affidavit material regarding the involvement of the Society is insufficient. There is a letter from the Society confirming that their investigation has been closed, but the court is entitled to have some corroboration from the Society as to why the Society was involved, the nature of the investigation, and why the Society elected to take no further action.

[25] The applicants have included in their evidence copies of the Society’s reports for each of the applicants filed by the Society pursuant to subsection 21.2(4) of the Children’s Law Reform Act. However, what is not included in the material, and should be, is a copy of the request made by each of the applicants for this report. A copy of the request is required to be filed with the court pursuant to section 21.2(3) of the Children’s Law Reform Act.

[26] Although the issue of the adoption is not before the court at this time, given that this is the plan as set out by the applicants in support of their claim for custody, I raise the following for consideration:

a) Subsection 141(1)(a) the Child and Family Services Act (“the Act”) provides that no person except a Society or licensee shall place a child with another person for adoption;

b) Subsection 141(2) of the Act provides that no person except a society or a licensee whose license contains a term permitting the licensee to act under this subsection shall bring a child who is not a resident of Ontario into Ontario to be placed for adoption;

c) The aforesaid subsections 141(1) and 141(2) do not apply in the case of family adoptions as set out in subsection 141(8);

d) In Larocque v. Fraser 1998 29739 (ON SC), [1998] O.J. No 5459, (Ontario Court (General Division)), the court was faced with a situation where parents of a new-born child “placed” that child for adoption with another couple who were not relatives of the parents. To that extent the facts of that case are similar to the present case.

e) At issue in Larocque was subsection 146(1)(b) of the Act that provides that a court can make an order for the adoption of a child who “has been placed for adoption by a person other than a Society or licensee and has resided with the applicant for at least two years.” (my emphasis);

f) In Larocque the court considered who was included in the term “a person other than a Society or licensee” and the court determined that this did not include parents who “placed” their child for adoption with persons who were not family members.

[27] There is no evidence in the present case that the child has been “placed” for adoption by a licensee or Society.

[28] I only raise this issue given that the entire plan of the applicants in seeking custody appears to be in furtherance of their plan to adopt the child. There is no present indication as to whether the applicants intend to employ a “licensee” pursuant to the Act to act in that capacity. Although I raise this issue, I make no decision about it, as the issue of compliance with the Act for the purposes of an adoption, and the applicability of the Larocque decision, will be matters that will be addressed if an adoption application is commenced.

INTERIM CUSTODY

[29] In the circumstances, as the child is in Ontario, and given that the applicants need to make decisions affecting the child, I find that it is in the child’s best interests to make an interim interim custody order, but on a without prejudice basis.

ORDER

[30] For reasons set out above, an order shall issue incorporating the following:

1. On a completely without prejudice basis to the rights of the respondents, the applicants shall have interim interim custody of the child;

2. The applicants shall file the following:

a) A certified copy of the child’s birth certificate or statement of live birth;

b) Copies of the forms submitted by each party pursuant to section 21.2(2) of the Children’s Law Reform Act;

c) An original police records check for the applicant L.M.H. under the name of “L.M.O.” with the form of the police records check to be in compliance with s. 21.1 of the Children’s Law Reform Act and O. Reg. 24/10.

3. The respondents shall be personally served with the application, the form 35.1 affidavit of each applicant, all other affidavits filed by the applicants, this endorsement, and a copy of this signed and issued order. The application shall be amended with a return date of April 14, 2014 at 9:30 a.m.

4. If the applicants intend to rely on any consent signed by either or both of the respondents in relation to any claims made in the application, then the signature of each respondent shall be witnessed by a reliable adult person not related to either respondent, and the consent shall be accompanied by an affidavit of execution. The consent shall provide confirmation as to whether or not the respondents obtained independent legal advice. The affidavit of execution shall confirm that the deponent was satisfied that the respondents are both literate and that they were able to read and understand the consent.

5. The applicants shall file an affidavit from the Children’s Aid Society of London and Middlesex (“Society”) or other evidence from the Society confirming why it was involved, the nature of its investigation, its findings, and why its file was closed.

6. The applicants forthwith shall also serve the children’s aid society in Nunavut having jurisdiction where respondents reside, with a copy of this endorsement and the signed and issued order.

7. This application is adjourned before me to April 14, 2014 at 9:30 a.m. to be spoken to and to set the next step in this case.

8. Unless otherwise ordered, I am seized with all further steps, proceedings, conferences, and motions in this case.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 10, 2014