Court File and Parties

COURT FILE NO.: A 2/16 DATE: 2016/07/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.D.K. Applicant AND M.G.C. Respondent

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. C11

BEFORE: Justice A. Doyle

COUNSEL: Jillian Burford-Grinnell, for the Applicant Jessica Brant, for the Respondent

HEARD: July 4, 2016 (at Napanee)

Endorsement

[1] This is a motion by the applicant stepfather (stepfather) for an order dispensing with the consent of the biological father (father) with respect to the adoption of the child C.S.L.K. born […], 2016. The Applicant is married to the child’s biological mother (mother). Both the mother and the child have consented to the adoption.

[2] The father is objecting to the adoption and is requesting that the motion be dismissed. He wishes to be part of his son’s life.

[3] For reasons set out below, the court dismisses the motion.

Background

[4] The mother and father were married on October 29, 2005. They separated in January 2006. A divorce was granted on an uncontested basis on June 23, 2008.

[5] In her divorce application and divorce affidavit, the mother indicated that there were no children of the marriage.

[6] The mother indicates that she left the marriage due to domestic violence. In her earlier materials she indicated that the father had been charged at the time of the separation. She made no mention of her own assault charge.

[7] In fact, both parties were charged and the charges were eventually withdrawn as they did not wish to testify against one another.

[8] The mother states that she was advised by the CAS not to note the father on the birth certificate. The father does not recall the CAS being involved with the family at the time.

[9] Both parties allege that the other party was unfaithful during the marriage. The father states that he was not aware that the child was his biological child. He does admit to seeing the child return home from the hospital after his birth.

[10] The stepfather and the mother met when she was three months pregnant. He was present during the pregnancy and birth. They married on August 1, 2009.

[11] The father has not had contact with the child since birth except for on certain occasions when they coincidentally met in the community, such as at Walmart. He would never approach them. The mother would usher the child away.

[12] The father states that when he saw the child’s face at Walmart, he was shocked to see how much the child looked like his other children and hence retained counsel in December 2015 to commence an application for access.

[13] At that time, the father indicated that he had a meeting with the mother to discuss access, the mother added him on her Facebook page and he was shown photos of the child who looked like his youngest daughter. He states that the mother was prepared to let the child see his sisters (the father’s daughters from another relationship).

[14] The father resides with his new partner, his three biological daughters from his partner and his partner’s three daughters from another relationship. The mother resides with the stepfather and their other biological child.

[15] Prior to December 2015, the father made no efforts to contact the mother to gain access to the child nor did he provide financial support. The father states that he did not believe that the child was his.

[16] The father indicates that he was met with threats of violence when he tried to approach the mother to see if the child was his. He states that the mother, her brother and her mother have verbally threatened him.

[17] In February 2016, the father was served with the application for an adoption.

[18] The stepfather commenced the application for an adoption without notice in January 2015. The motion to dispense with service to the father and consent was denied without prejudice to bring the motion for dispensation of the consent once he was served.

Stepfather’s position

[19] The child has signed a written consent to the adoption after having met with someone from the Office of the Children’s Lawyer (OCL).

[20] The child has written a letter to the court saying that he wishes to be adopted by the stepfather. He states that he feels happy and safe with him and he loves him.

[21] The child has recently been diagnosed with learning challenges and ADHD and to introduce him to his father at this point of his life would cause conflict and additional stress.

[22] The stepfather notes that the father has chosen not to be involved in the child’s life. He was actually across the street when the child came home from the hospital after his birth.

[23] At the time of the separation, there was a no contact order, but the father could still have brought an application for access.

[24] The stepfather notes that he has had 10 years to apply for access to the child and it is not in the child’s best interests for the child to be introduced to his father at this time. The stepfather is the only father the child has known.

[25] The stepfather has treated the child as his own and the child has a good relationship with his brother who is the biological child of the stepfather and mother.

Father’s position

[26] The father indicates that he was not aware that the child was his child.

[27] If his consent is dispensed with, the child would lose the benefits of knowing the father, his siblings, his grandparents, his aunts and uncles and cousins.

[28] The father indicates that the child would benefit if the father is involved as an adoption would deprive him of that relationship.

[29] He does not wish to disrupt the family unit nor interfere with the child’s relationship with the stepfather. He merely wants to give his son the opportunity to meet him and his family and develop a relationship.

Legal Principles

[30] In determining whether it in the child’s best interests for the Court to dispense with the father’s required consent, the court must take into consideration the factors set out in the Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 136 (CFSA):

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:

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.

[31] The provision dealing with the consent of a parent is set out in s. 138 of the CFSA:

(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.

[32] The court has been referred to Re: C.J.C.B., 2016 NBCA 4, 444 N.B.R. (2d) 387, where Justice Larlee states that in determining whether the adoption should proceed, the court should consider whether the adoption would deprive the child of inheritance rights and the right to support from his father along with rights to a parental relationship. In that case, the mother contended that the child’s sense of continuity needed to be ensured and that the adoption was the only way to guarantee such continuity free from the risk of disruption by the father.

[33] The court also noted that the court must keep in mind that a court issuing an adoption order would cause a child to lose certain rights such as half of his legal family, inheritance rights with respect of this parent, the right to support and any other parental obligations.

[34] In Block v. Benight (1974), 1974 NSCA 2597, 8 N.S.R. (2d) 210 (S.C.(A.D.)), the court dismissed an appeal with respect to one child where the lower court refused to dispense with consent of the father. The court held that the child would continue to enjoy all the benefits of the home of the parents, but would be deprived of the love and affection of the natural father. The court found that the child had a stable life with the mother and there was nothing to indicate that the child’s sense of continuity was threatened and that it was speculative to suggest that the father’s future involvement in the child’s life would pose a risk to the child’s sense of continuity.

[35] In J.C.S. v. C.B.R.S., 2011 ONCJ 191, 4 R.F.L. (7th) 495 (“J.C.S.”), Justice Tobin dismissed the motion to dispense with the father’s consent as it would result in the child losing the opportunity to re-establish a relationship with his father. By denying the adoption, the child’s current stable and positive situation would not be at risk nor would such an action result in disruption for the child. The father was granted joint custody 4 years before the hearing. After 2 years, the father and son relationship deteriorated and ended. There was no evidence of abuse. The court found that the child’s current status within the family was already positive and stable and not at risk of disruption if the adoption was denied. An adoption would prevent the opportunity for the eleven-and-a-half year old boy to re-connect with his father.

[36] Justice Tobin refers to the M.A.L. v. R.D.M., 2005 ONSC 7659, [2005] O.T.C. 205 (S.C.), where Justice Robertson states at para. 5:

A review of the case law indicates the following principles should be applied:

1. the court must consider the best interests factors set out in subsection 136(2) of the Act;
2. the court must balance what the child will gain and lose, with the emphasis on what the child will gain;
3. the decision must take into account the child’s wishes, as best those can be ascertained;
4. the court must consider the child’s existing reality.

[37] In Re. R. (A.A), 1998 SKQB 13811, the child was four years old. The father was present only for 3 to 4 months and then was incarcerated. He was not attentive or loving to the child, did not involve himself with the day to day care, was not employed and did not provide support. The court found that the father had virtually no interest in the son, nor did he support his son. In addition, he did not present a plan for future parental involvement or support and appeared to abandon his parental responsibilities.

[38] In L.(S.M.L.) v. M.(J.K.), 2016 ONSC 3198, Justice Pazaratz provides a thorough review of the case law. In that case, the court dispensed with the consent of the father where he had no contact with the child for 8.5 years, was not paying child support, had other children of another relationship taken into care by the Children’s Aid Society and when he was approached by the mother for his consent to the adoption, he said he would sign the consent if he was paid $10,000. A previous court order permitted him to have supervised access. He attended for three visits, and then the access centre refused to facilitate visits because he arrived in an intoxicated state. The mother did bring the child for 2 more visits but the father did not attend. Further visits were cancelled. She obtained a final order for sole custody with no access to the father and a restraining order. He did not seek to vary the order. The child did not have any recollection of her father but knew she had his name.

[39] The child developed anxiety issues when she learned that she did not share the same name as her stepfather and half-brother. The father did not respond to the application, nor attended the hearing. He had been involved with the CAS and a determination was made that he not have contact with three of his younger children.

[40] Justice Pazaratz refers to Stoodley v. Blunden (1980), 1980 NSCA 3761, 38 N.S.R. (2d) 397 (C.A.), where the court considered whether there would be a positive contribution to the welfare of the child by dispensing with consent. The court reviewed the past, present and future circumstances which have affected or may affect the welfare of the child and determined whether the child would benefit from permanently cutting the parental tie.

[41] Justice Pazaratz also refers to Smith v. Harvey (1974), 1974 ONCA 2162, 19 R.F.L. 367 (Ont. C.A.) where the court noted that it must be mindful of improper motives as a stepparent and parent try to use the adoption process to terminate the relationship between the child and the father as it may create difficulties for the mother and stepfather.

[42] As stated in M.(B.A.) v. B.(C.G.) (1987), 1987 NLSCTD 5148, 65 Nfld. & P.E.I.R. 312 (Nfld. U.F.C.), it may be inappropriate for a stepparent to adopt when it would interfere with the biological father’s ongoing access.

[43] In assessing the weight to be placed on the child’s wishes, Justice Pazaratz refers to J.C.S., where the court stated that it should have information about the child’s level of maturity and experiences.

[44] The stepfather was aware of the child emotional needs and pursuing adoption to help abate the child’s anxiety. She was diagnosed with Tourette’s, ADHD and OCD.

[45] Also, Justice Pazaratz states the following at para. 16 (p):

(p) The advantages of adoption identified by the courts include continuity of care; a positive relationship between the child and 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. [Citations omitted]

Analysis

[46] The court must make some findings of fact. There is diametrically opposed evidence regarding the father’s knowledge or lack of knowledge of whether the child was his child.

[47] The court notes the following:

(i) the mother did not indicate the child’s name on the divorce application which was issued in 2008 when C.S.L.K. was 2 years old; (ii) in her affidavit of divorce dated May 2, 2008, she did not disclose the child of the marriage; (iii) the mother did not place the father’s name on the child’s birth certificate and statement of live birth; (iv) the mother did not make any attempts to introduce the child to the father; (v) the adoption application was issued right after the father met with the mother to discuss contact between the father and the child. The stepfather says it is because they could not afford an adoption until now; (vi) the mother did not disclose that she was also charged with assault at the time of the separation and the records of the police and the CAS confirm an assault charge which was later withdrawn; and (vii) there is one affidavit from the mother’s great aunt stating that in her view the father knew that the child was his biological child. The greataunt is not a neutral person.

[48] Clearly, the mother has attempted to shut the father out of the life of the child. She lied on her divorce application, in the adoption affidavit in these proceedings she mentioned the father’s charges but not hers that arose at the time of the separation, and she swore a false affidavit of divorce when she indicated that there were no children of the marriage. Misleading the court is very serious.

[49] The mother’s evidence is not credible due to these inconsistencies and lack of forthrightness. Therefore I prefer the father’s evidence over the mother’s evidence. Hence, the court, accepts the father’s evidence that the parties had a meeting in December 2015 to discuss the father being introduced to the child.

[50] Originally, the adoption application was brought with an attempt to dispense with notice not affording the father procedural fairness.

[51] Despite the mother’s deceit, the court must determine what is in the child best interests when deciding whether to dispense with the father’s consent.

[52] Should the court deprive this child of the love and affection of his father?

[53] Would the child’s current home and relationships be disrupted if the adoption is not granted?

[54] The answer to both questions is no.

[55] The court considers the factors set out in s. 138 of the CFSA,

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. The child has recently been diagnosed with ADHD and learning challenges. The stepfather has been very involved in his medical and educational progress. He and the mother have been involved with the school in the development of the child’s IEP. He is attached to the stepfather as evidenced by his letter to the court. The stepfather is the only father that he has known. The mother states that he was told when he was 5 years old that the stepfather was not his biological father.

2. The child’s physical, mental and emotional level of development. As stated above, the child has educational challenges which are being monitored by the stepfather and the mother

3. The child’s cultural background. This has not been raised in this case.

4. The religious faith, if any, in which the child is being raised. The stepfather and mother are Jehovah’s Witnesses and the child participates in the religion. The father states that he would respect their traditions.

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. There is no doubt that C.S.L.K. has a positive relationship with the stepfather and feels secure as a member of the family. He has taken on the stepfather’s surname.

6. The child’s relationships by blood or through an adoption order. The child also has a bond with his sibling and considers himself the son of the stepfather. However, he has no relationship with his father as he has never been afforded the opportunity to meet him. His mother has denied the child his right to know his father and know that he has a father who is interested in being part of his life. By doing so, the child has not been able to meet his siblings from his father’s new relationship, nor meet his numerous aunts, uncles, cousins and grandparents, all of whom are interested in meeting him and welcoming him to the family.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. There is no evidence that the love and stability and continuity of care with his mother and stepfather would be disrupted if an adoption is not granted. Of course, with a diagnosis of ADHD, the importance of consistency and continuity in his life becomes more prominent. Certainly, the father and his family are strangers to the child. Nevertheless, it is in his best interests that he be given the opportunity to know that he has a father who wants to have a relationship with him. It is also in his best interest to meet his siblings.

8. The child’s views and wishes, if they can be reasonably ascertained. The child will be 10 years old in a few weeks. He has been advised of his rights through the OCL and signed consent to the adoption. The consent confirms that the adoption was explained to him and what the consent means, and the time for changing his mind and the rights with respect to the disclosure of adoption information. He has written to the court. Of course, he wants the stepfather to continue to play the role of a father. The stepfather will continue to do so whether there is an adoption or not. An adoption cuts any possibility of ties with his paternal side of the family. He is 10 years old. There is evidence of his IEP and his education assessments and the support services placed by the school. There is no evidence of his maturity and a clear understanding of the adoption in a legal matter. The IEP speaks of his struggles with fine motor skills, poor attention, polite and cooperative and age appropriate listening and comprehension skills when he was attentive. He has trouble with written and demonstrated instructions more than his peers and misses oral directions. He has difficulty with handwriting, spelling and producing written output. He needs to use a computer to assist with speed, quality, neatness and volume of his written output. He has an occupational therapist. The therapists’ notes were filed. He has special needs. The court has considered his wishes but believes that it is in his best interests that he be given the opportunity to have a relationship with his father.

9. The effects on the child of delay in the disposition of the case. The application was commenced in February 2016 and there were some delays due to the father’s change of representation and delay in filing his responding materials. The stepfather and mother report that the child is anxious to finalize the matter.

10. Any other relevant circumstance. The court notes that the father has never met the child and has not had a relationship with the child. He states that he had made efforts to determine if it was his own child but was met with threats. The child does not know his father. The Court can certainly consider how these circumstances arose and the reasons.

[56] Here, the father was not told he had a child and was denied any relationship with him for almost 10 years.

[57] The child would continue to have a stable family unit without the adoption. He will then be afforded an opportunity to be part of the paternal side of the family.

[58] This is not a custody application where the stepfather and mother would have final custody which would subject to a variation in the event of a material change of circumstances. This is with respect to an adoption which is final and irrevocable. It cannot be reviewed in the future by any court: see S.(R.) v. W.(B.), 2011 ONCJ 185.

[59] In conclusion, the stepfather has not met the onus of satisfying the court that it would be in the child’s best interest to dispense with consent of his father: see R.(N.J.) v. M.(R.J.) (1994), 1994 ONCJ 18216, 5 R.F.L. (4th) 375 (Ont. Ct. J. (Prov. Div.)).

[60] If the parties cannot agree on the issue of costs, the father will provide his 2 page submissions by July 29, 2016 along with a bill of costs and any offers to settle. The mother will provide her 2 page submissions with a bill of costs and any offers to settle by August 12, 2016.

Madam Justice Doyle Date: July 14, 2016