Court File and Parties

Court File No.: A65/2015 Date: 2016-05-13 Ontario Superior Court of Justice

In the Matter of an application for an order to dispense with the consent of the biological father to the adoption of the child, pursuant to the Child and Family Services Act, R.S.O. 1990 c.C.11

Between: S.M.L.L., Applicant – and – J.K.M., Respondent

Counsel: Jennifer Cooper, for the Applicant J.K.M, Not Appearing

Heard: May 13, 2016

Before: The Honourable Mr. Justice A. Pazaratz

Endorsement

[1] This is a motion by the Applicant step-father seeking an order dispensing with the consent of the biological father with respect to an adoption of the child G.L.W. born […], 2006. The Applicant is married to the girl’s biological mother who has custody of G.L.W. Both the mother and child have consented to the adoption.

[2] A brief chronology of the proceedings: a. On January 20, 2016 the Applicant commenced an Application to adopt his step-daughter. b. When the motion to dispense with service came before me in chambers on January 22, 2016, I directed that the biological father should be personally served, and that the matter should be returnable in court on a motions day. c. The father was personally served with the Applicant’s extensive materials including the motion seeking to dispense with his consent on April 10, 2016. d. He was served with an Amended Notice of Motion by regular mail on April 15, 2016, setting out today’s return date. He apparently opened the envelope, read the contents, scribbled randomly on one of the pages of an affidavit; wrote a very offensive word in bold letters on one of the pages, and then re-sealed and sent the envelope back to the Applicant’s counsel marked “Return to Sender”. e. He has not filed any responding materials with respect to the Application for Adoption, or today’s motion to dispense with his consent. f. He did not attend court to participate in today’s motion.

[3] I have considered the Applicant’s particulars: a. He is 36 years old. b. He earns approximately $48,000.00 as a territory manager and sales representative.

[4] I have considered the relationship between the Applicant and the biological mother: a. They met during the summer of 2011 when G.L.W. was five years old. b. They started living together in December 2012. c. They were married on January 18, 2014. G.L.W. was the flower girl in their wedding. She helped the Applicant and his best man pick out their wedding attire. d. The Applicant and the mother have a three year old son of this relationship, G.L.W.’s half-brother. They are expecting their second biological child at the end of June 2016. e. The Applicant and the mother currently reside in Hamilton. But they have purchased a home in Ottawa where the Applicant’s father and other family members reside. They plan to move to Ottawa in August 2016. The Applicant plans to work in his family’s business.

[5] I have considered the relationship between the Applicant and the child. a. He stood in the place of a parent to G.L.W. b. He has participated in her education; in making medical decisions for her; and in her financial, emotional and physical support. c. They have a deep emotional connection with one another. d. The Applicant wishes to demonstrate to G.L.W., to the mother, to his family, and to the broader community that he considers her as his biological child and a full member of his family. e. G.L.W. has resided in a household with the step-father since December 2012. She calls him “dad” by her own instigation. f. G.L.W. has never had any confusion around parental figures. She has always viewed the Applicant as her only father. g. She has consented to the adoption and has expressed to her step-father and mother that she wishes the adoption to proceed. h. She has questioned whether she will be able to use the same family surname in time for the birth of her new sibling in June 2016.

[6] I have considered the following additional information concerning G.L.W. a. Shortly after learning that her step-father and her brother born […], 2013 would share the same last name – and that she would not – G.L.W. developed anxiety issues. b. In 2014 G.L.W. was diagnosed with Tourettes, ADHD, OCD and a delay in her gross motor skills. Because of her issues, she experiences more stress than other children. She feels she is an “outsider”. c. The Applicant relates with G.L.W. on a level she understands, as he experienced some OCD tendencies as a child, which he outgrew. G.L.W. looks to him for nurturance and guidance. d. G.L.W. is family-oriented and has focussed on her last name being different from the rest of her family. She becomes visibly agitated and exhibits facial tics when her last name is mentioned (such as when she receives a report card or attends a doctor’s appointment).

[7] I have considered the Respondent biological father’s background and involvement with the child. a. He has not seen nor requested to see G.L.W. in eight and a half years. b. He has never voluntarily provided for her financial support. c. The father met the mother in 2001 when she was 17 years old. Throughout their five year relationship the father was verbally and physically abusive. d. Shortly after giving birth to G.L.W. in 2006 the mother found cocaine in their house and separated from the father. He then moved to Alberta for approximately one month, when G.L.W. was one month old. e. In 2007 the mother obtained a temporary sole custody order. The father was to have supervised access to G.L.W. at the Hamilton YWCA supervised access centre. He attended a total of three visits. The access centre refused to facilitate the third visit because the father arrived in an intoxicated state. The mother brought G.L.W. to the access centre for two subsequent visits, but the father did not attend. Further visits were then cancelled. f. On September 5, 2008 the mother obtained a final order granting her sole custody, with no access to the father. A restraining order was also granted preventing the father from communicating with the mother or attending at her residence, place of work, and G.L.W.’s future school, for a period of five years. The Respondent has not sought to vary this order. g. G.L.W.’s only knowledge of her biological father is his name, and that he was not ready to be a father when she was born. She has no recollection of the father or his family.

[8] I have considered the following communications relating to adoption of G.L.W. a. On June 24, 2015 the father contacted the mother through Facebook suggesting that he would be willing to consent to G.L.W.’s adoption for a fee. The mother did not respond. b. In March 2016 the father’s girlfriend responded to messages sent to the father stating “if u want him to do that it (sic) gonna pay him off.” And “he will not sign over his rights without being bought out tell (the step-father) 10,000.”

[9] I have considered the following additional circumstances relating to the biological father. a. He has three younger children with his girlfriend. b. None of those children are in their care. c. The youngest two children were made Crown wards without access – one as recently as February 2016 in this court, and without the father’s participation.

[10] In Ontario, the statutory framework and authority for adoption proceedings is found under part VII of the Child and Family Services Act (“CFSA”).

[11] Section 137(2) provides that an order for the adoption of a child who is less than sixteen years of age shall not be made without the written consent of each parent. Section 137(6) adds that where the child is seven years of age or more, his/her consent is also required, but only after the child has had an opportunity to obtain counselling and independent legal advice. As stated, the mother and child have both signed the required consents.

[12] The Respondent father meets the definition of “parent” under section 137(1) of the CFSA and section 8(1) of the Children’s Law Reform Act (“CLRA”).

[13] The Applicant has made several attempts to contact the father and obtain his consent for the adoption of G.L.W. The father has indicated he would only agree to the adoption if a fee was paid to him in exchange for his consent. The father’s girlfriend conveyed the same message.

[14] The Applicant seeks to dispense with the father’s consent pursuant to s.138 of the CFSA which provides that a court may dispense with consent for adoption of a child: a. Where the Court is satisfied that it is in the best interests of the child to do so; and b. The person whose consent is required has received notice of the adoption application and the motion to dispense with their consent. The Applicant has met the notice requirements.

[15] In determining whether it is in the child’s best interests for the Court to dispense with the father’s required consent, s. 136 of the CFSA sets out factors which the court must take into consideration, if relevant. These include: 1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child's physical, mental and emotional level of development. 3. The child's cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6. The child's relationships by blood or through an adoption order. 7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8. The child's views and wishes, if they can be reasonably ascertained. 9. The effects on the child of delay in the disposition of the case. 10. Any other relevant circumstance.

[16] I have considered the applicable law: a. Section 138 of the CFSA is conjunctive. The criteria in both clauses (a) and (b) must be met: P.C. v. P.C.C.-G. 2004 ONCJ 130 (OCJ). b. The onus is on the party who seeks to dispense with a parent’s consent, to satisfy the court that it would be in the best interests of the child to grant the order. N.J.R. v R.J.M., [1994] O.J. No. 1331. The court must consider the best interests factors set out in s. 136(2). Lott v. McRae, [2005] O.J. No. 1060, 2005 CarswellOnt 1069 (SCJ). c. The best interests of the child test is a strict test, and the facts of the case must be applied when determining whether it is appropriate to dispense with the consent of a parent. N.J.R. v R.J.M. (supra). The Court must be satisfied that the best interests requirement has been established “beyond the mere balance of probabilities.” W. v. C. (1981), 35 O.R. (2d) 730 (Ont. P.C.) d. The best interests test in the context of an adoption proceeding is not the same best interests test in the context of a custody and access proceedings. A custody or access order can always be reviewed upon a material change in circumstances. An adoption order is final and irrevocable. It may not be questioned or reviewed in any court. R.S. v B.W. 2011 ONCJ 185 (OCJ). e. In applying the best interests of the child test, the court must weigh the advantages of dispensing with a parent’s consent to adoption, against the disadvantages. M.(J.J.) v. L.(S.D.) (1992), 42 R.F.L. (3d) 400. The court must balance what the child will gain and lose, with emphasis on what the child will gain. Lott v. McRae (supra). There must be “cogent” benefits to the child in order to terminate the blood relationship. K. v. E. 2013 ONSC 5421; R. (N.J.) v. M. (R.J.), (1994), , 5 R.F.L. (4th) 375 (Ont. Prov. Div.) f. The court must determine whether there would be a positive contribution to the welfare of the child by dispensing with the natural parent’s consent. This requires a review of the past, present, and future circumstances which have or may affect the welfare of the child. The court must then determine whether the child will benefit by permanently cutting the parental tie. Stoodley and Blunden (1980), 17 R.F.L. (2d) 280 (N.S.C.A.). g. It is not necessary to find parental misconduct to dispense with the natural parent’s consent to adoption. The exclusive focus is the child’s best interest, not the rights of the natural parent. Parental misconduct or abandonment is only relevant if the non-consenting parent continues to engage in conduct that is not beneficial or even harmful to the child. R.S. v. B.W., 2011 ONCJ 185 (OCJ); S.I.L. v. L.J.L. and L.J.L., 51 O.R.(2d) 345, 47 R.F.L.(2d) 155, [1985] O.J. No. 2584, 1985 CarswellOnt 299 (U.F.C.); M.L. and G.L. v. S.M., 13 A.C.W.S. (3d) 259, [1989] O.J. No. 3, 1989 CarswellOnt 1385 (U.F.C.). h. A step-parent adoption should not be granted unless there is obvious benefit to the child and such change is absolutely necessary. M.(J.J.) v. L.(S.D.) (supra); Wolfe and Cherrett (1978), 6 R.F.L. (2d) 121. i. In cases of step-parent adoptions, the court should be mindful of improper motive. The parent and step-parent cannot use the adoption process to terminate the relationship between the child and the natural father because this relationship creates difficulties for the mother and stepfather. Smith v. Harvey (1975), 19 R.F.L. 367; [1974] O.J. No. 1291, 1974 CarswellOnt 213 (Co.Ct.), aff’d at (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 CarswellOnt 140 (Ont.C.A.). Adoption by a step-parent may be inappropriate where it would interfere with a biological father’s ongoing access to a child. B.A.M. v C.G.B. (1987), 10 R.F.L. (3d) 85 (Nld U.F.C.). j. The decision must take into account the child’s wishes, to the extent that they can be ascertained. Lott v. McRae (supra). The court must have information about the child’s level of maturity and experiences, in order to determine the weight to be given to a child’s views and preferences. J.C.S. v C.B.R.S. 2011 ONCJ 191 (OCJ). k. The court must consider the child’s existing family reality. Lott v. McRae (supra). l. The court should also consider whether a step-parent application to adopt is premature. If the application by the step-parent is made in the early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent's relationship with a child before assessing the stability and permanence of the relationship between the step-parent and the other parent: Re Pennington (1980), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 CarswellNS 148 (N.S. Co. Ct.). m. The stability and duration of the adoptive family must be considered. Re: B.C. Birth Registration No. 82-09-032673; M. v. B. (1984), 41 R.F.L. 187 (Ont County Court). n. The desire of a biological parent to maintain a formal parent-child relationship is relevant, and requires thorough consideration. But the benefits and implications of an adoption must ultimately be assessed from the child’s perspective. Re: L. and L. (1985), 51 O.R. (2d) 345 (Ont. U.F.C.). o. Where a biological father has shown a genuine interest in a child, even though separated, and the child has an emotional attachment to the natural father, courts have been very reluctant to dispense with the father's consent. Where the relationship is non-existent, courts are more persuaded to dispense with the natural parent's consent. Smith v. Harvey (supra). p. The advantages of adoption identified by the courts include 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. K. v. E. (supra); C (P.) v. C. (P.C) , 2004 ONCJ 130, 2004 ONCJ 130, (OCJ); J.C.S. v C.B.R.S. (supra). q. 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. K. v. E. (supra); C.M.B. (Re), 2008 ABQB 564, 2008 A.B.Q.B. 564.

[17] I make the following findings in relation to G.L.W.’s best interests: a. G.L.W. has lived with her mother since birth. b. She has known the Applicant since 2011 as a fully involved parent. She has developed a strong emotional connection with him. He is a loving father – in every sense of the word – who is active in every aspect of her day-to-day life. c. She is old enough and mature enough to understand the concept of adoption, and what it would mean in her life. She executed a consent to adoption when she was almost nine years old. She is now weeks away from turning 10, and she is still enthusiastic about wanting the adoption to be granted. d. An adoption by her step-father is an important issue for G.L.W. It impacts on her emotional and physical health, particularly given her special needs. e. An adoption, if granted, will reassure G.L.W. that she officially “belongs” as a member of her family. f. The step-father is keenly aware of her emotional needs, and is pursuing the adoption to help ease the child’s anxiety, particularly as the family unit is about to expand. g. The Respondent father has not had any contact with G.L.W. since she was 18 months old. Neither he nor his family have requested to have a relationship with the child. h. There have been previous determinations by the Children’s Aid Society and by the Superior Court of Justice that the Respondent should not have contact with his three younger children. i. When provided with the opportunity to communicate with counsel or otherwise provide input into the Court’s determination of this matter, the Respondent (through his girlfriend) responded with threats, insults and a reiteration of his wish to receive financial compensation for providing his consent.

[18] I find it is in the best interests of G.L.W. that adoption by the Applicant step-father should be granted, and that the consent of the Respondent biological father should be dispensed with. There are overwhelming advantages to the child – and no disadvantages.

[19] With both prerequisites of section 138 having been met, the motion to dispense with the biological father’s consent to the adoption of G.L.W. by the Applicant is granted.

[20] Pursuant to s. 148 of the CFSA, where a court dispenses with parental consents to adoption, that court cannot make an adoption order until the time for commencing an appeal from the order dispensing with consent has expired, or if an appeal is taken, it has been finally disposed of or has been abandoned.

[21] The Application for adoption will accordingly be adjourned to the trial co-ordinator of this court. If not less than 30 days from this date no appeal of this order has been commenced, the Adoption Application is to be brought to my chambers with an updating affidavit of the Applicant, for final disposition.

Pazaratz, J. Released: May 13, 2016

Reasons for Judgment

Court File No.: A65/2015 Ontario Superior Court of Justice

Between: S.M.L.L., Applicant – and – J.K.M., Respondent

Reasons for Judgment The Honourable Mr. Justice A. Pazaratz

Released: May 13, 2016