Court File and Parties

COURT FILE NO.: A10/16 DATE: May 18, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: J.L.H. and G.W.P., applicants AND: M.W.G. and A.J.G., respondents

BEFORE: MITROW J.

COUNSEL: Julie Lee for J.L.H. and G.W.P. M.W.G. not appearing Edward J. Mann for A.J.G.

HEARD: February 1, 2017

Endorsement

[1] The applicants bring a motion pursuant to s. 138 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the Act”) to dispense with the respondent mother’s consent to an adoption.

[2] Although the applicants’ motion was returnable initially in May 2016, it has been adjourned on a number of occasions, primarily to afford the mother the necessary opportunity to secure a legal aid certificate, retain counsel and file responding material. Some of the adjournments were granted over the objection of the applicants.

[3] The motion proceeded on affidavit evidence. There were no cross-examinations on the affidavit material filed.

[4] For reasons that follow, the relief sought by the applicants is granted.

The Parties and Their Positions

[5] This is a “family adoption” brought by the applicants pursuant to s. 146(2) of the Act.

[6] The applicants seek to adopt the child, J., age four (sometimes referred to as “the child”).

[7] The respondents, M.W.G. (“the father), and A.J.G. (“the mother”), are the child’s biological father and mother.

[8] The applicant, J.L.H., is the child’s paternal aunt. She is the half-sister of the child’s father.

[9] The applicants are married to each other. There is one child of their marriage, a daughter, age eight. The applicants both are professional accountants.

[10] The respondents were in a relationship for a number of years that ended in the spring of 2016.

[11] In addition to J., the respondents have another child together, D., age six. The mother also has a third child, T., age 11, who is a half-brother to J. and D.

[12] As explained in more detail below, J. is in the care of the applicants, and the other two children are in the care of their maternal grandmother.

[13] The applicants submit that the order sought on the motion – dispensing with the mother’s consent to adoption – is in the child’s best interests and should be granted.

[14] The father did not appear on the motion. However, he did file an affidavit supporting the relief sought by the applicants. Further, the father has signed the prescribed form, which has been filed, consenting to the adoption of the child by the applicants.

[15] The mother submits that the applicants’ motion should be dismissed. The mother also raises an issue as to access between herself and the child, and between the child and his two brothers.

The Facts

[16] There are many significant facts that are not in dispute, and it is those facts that inform the proper disposition of the motion.

[17] There is no dispute that the child was apprehended by the Children's Aid Society of London and Middlesex (“the Society”) at birth. Further, the children, T. and D., had been apprehended in or about the month prior to the birth of J.

[18] The father admits, and there is no dispute, that he has a long-standing history of substance abuse. He deposes that he is unable to care for J. and further that he maintains no ongoing contact with T. and D.

[19] In his candid affidavit, the father deposes that Society intervention in apprehending all three children was prompted by protection concerns relating not just to domestic conflict between the father and the mother, but based also on “both parents’ drug addictions and the resulting negative impact on our parenting abilities” (para. 6 father’s affidavit).

[20] Although there is evidence from the paternal aunt that all three children were returned briefly to the mother in the latter part of 2012, following which they were again apprehended, the undisputed fact is that J. has been in the continuous care of the applicants since June 2013. It was at this time, after completion of a kinship assessment, that a final supervision order was made placing the child in the care of the paternal aunt.

[21] As a result of a status review proceeding, on March 10, 2015, Garson J. made a final order terminating the existing supervision order and placing the child in the custody of the paternal aunt pursuant to s. 57.1 of the Act. In relation to access, Garson J. ordered that the father shall have no access to the child, and that the mother shall have access as follows (para. 4):

The mother, [A.J.G.], shall have reasonable access to the child, J. [full name and date of birth omitted], once a week at Merrymount Children’s Centre, for two hours on each occasion, supervised by Merrymount or a third party agreeable to [the paternal aunt], for a period of one year, and thereafter, access shall be on such terms and such conditions as deemed appropriate by [the paternal aunt], and for as long as she remains committed to following through on her intentions, and in the sole discretion of the [paternal aunt].

[22] In her first affidavit, the mother deposed, in relation to the child’s apprehension at birth, that she never used oxycontin, but was on methadone. The mother deposed that any allegation that she used oxycontin and methadone during pregnancy is false.

[23] The aforesaid evidence from the mother was in response to the paternal aunt’s evidence that included hospital records dated eight days after the child’s birth. Those records noted the child to have a high-pitched cry and being jittery; the child was described as having “some withdrawal symptoms” and the child was assessed as having drug withdrawal.

[24] In relation to the hospital records, the mother deposes that she had “never received” those records and she deposes further that she first saw those records when they were attached to the paternal aunt’s affidavit in support of the motion now before the court.

[25] However, the mother’s evidence as to never having seen those records previously is quite suspect, and lacking credibility. The paternal aunt has produced a copy of a previous affidavit signed by the paternal aunt and sworn December 19, 2014 that had appended to it the same hospital records. This earlier affidavit had been filed by the maternal aunt in the protection proceeding leading to the eventual final order of Garson J. referred to earlier. In that protection proceeding, the mother was an active party and she was represented by counsel.

[26] Also, in his reasons for judgment in relation to his final order, Garson J. noted that the mother did not oppose a custody order in favour of the paternal aunt, and that the only issue is access. In reviewing the evidence, Garson J. stated at para. 28 in his handwritten endorsement:

In short, there is substantial and overwhelming evidence regarding [the mother’s] general instability, history of neglect, mental health concerns, illicit drug use (including use of oxycontin and methadone during [J.’s] pregnancy) and an inability to address these concerns over time.

[27] Notwithstanding the mother’s feeble attempt to distance herself from any suggestion that she used drugs during her pregnancy or that the apprehension of the child at birth was related to the mother’s drug use, the evidence on the motion, including the findings made by Garson J. in the protection proceeding, establishes clearly that protection concerns at the time of the child’s birth included drug use during the mother’s pregnancy with the child.

[28] There is no credible evidence disputing the evidence of the paternal aunt that while the child was in the applicants’ care during the child protection proceedings, that the applicants ensured that the child was made available for visits with the mother.

[29] After the final order made by Garson J., the paternal aunt deposed that two days later she contacted Merrymount in relation to arranging for supervised access and it was the paternal aunt’s evidence that she completed the Merrymount intake on March 26, 2015. However, it was not until May 8, 2015 that the mother completed her intake.

[30] The foregoing is corroborated by the Merrymount records appended to one of the paternal aunt’s affidavits. No issue was taken by the mother as to the admissibility or the reliability of the Merrymount records.

[31] However, as confirmed by the Merrymount records, no access visit ever occurred.

[32] The paternal aunt blames the mother for the inability to implement supervised access at Merrymount. The paternal aunt deposes that she did everything that she reasonably could to ensure that those visits were arranged. The paternal aunt then abandoned her attempt to arrange access through Merrymount and instead instructed her counsel, Ms. Lee, to forward a letter dated September 4, 2015 to the mother. That letter, after setting out from the paternal aunt’s perspective that the mother was at fault for the failure to implement supervised access through Merrymount, proposed weekly visits to be supervised by either of the applicants, to occur on Sundays, between 2:30 p.m. and 4:30 p.m., with the applicants to assume the costs of any of the visits – for example the applicants would pay for entry fees to use any facilities in the community such as the Children’s Museum or the YMCA. However, the mother was expected to be responsible for her transportation to various locations where access was to occur.

[33] The evidentiary record does not support a finding, as suggested by the paternal aunt, that the mother is entirely to blame for the fact that supervised access visits were not implemented through Merrymount.

[34] The mother’s unchallenged evidence is that she was unable to afford a phone or a computer. At times, she would use wifi connections on a friend’s computer. The mother relied on a community outreach worker to assist her and the mother used that worker’s telephone to make calls to Merrymount and to receive any messages from Merrymount. At one point the mother and the worker together attended at Merrymount to try to facilitate the supervised access arrangements. This evidence is corroborated by the affidavit of the worker. The Merrymount records do confirm various messages being left between Merrymount and the mother. Although I agree that the mother was somewhat tardy in completing her intake, some of that delay may be understandable given her limited means to communicate with Merrymount. Also, the mother did make efforts on a number of occasions to communicate with Merrymount.

[35] A reading of the Merrymount notes shows that on May 22, 2015, the coordinator at Merrymount asked the paternal aunt if she was available on a Wednesday or Thursday for access visits as the mother had requested this. However, the paternal aunt refused that request, and the Merrymount notes indicate this was due to the paternal aunt’s scheduling. At this point, the coordinator advised that the program was available on alternate Sundays from 2:30 to 4:30 p.m. starting June 7 and the paternal aunt agreed.

[36] At this point, some observations are appropriate. First, the decision by the paternal aunt to agree to alternate Sundays was not in compliance with the order which stipulated that access was once a week for two hours. Secondly, there was no evidence to suggest that the Wednesdays or Thursdays proposed by the mother were other than weekly visits. The paternal aunt does not explain in her material by what authority she changed the access to biweekly. Thirdly, there is no evidence that the mother was ever aware of the Sunday biweekly visits agreed to by the paternal aunt.

[37] The Merrymount records confirm that, between June 1, 2015 and June 18, 2015, there were various calls and discussions between the paternal aunt and the coordinator at Merrymount as to whether the Sunday visit was going ahead. However, during this timeframe, the mother had called twice, leaving a message. The mother had asked on June 11, 2015 if “everything had been set up.” On June 18, 2015, the coordinator called the mother and left her a message to call back to discuss the access schedule.

[38] The Merrymount records then indicate that the next contact was a phone call from the mother on August 19, 2015 wondering why access had not started. The mother was told that Merrymount had been trying to contact her and had left messages, with no response. Merrymount then called the paternal aunt and received the message that she was on holiday and that the paternal aunt would call back after Labour Day to schedule a visit. However, the paternal aunt did not follow up with Merrymount and, instead, as discussed earlier, the mother received the letter from the paternal aunt’s counsel dated September 4, 2015. In relation to the letter, the mother deposed that on Sundays the buses run less frequently and that it could take her much longer to get to the access location depending on where it was.

[39] Given the foregoing evidence, it would have been preferable if the paternal aunt and the mother had implemented the simple strategy, after the mother’s intake appointment was completed, to meet together and attend at the same time at Merrymount to work out the access schedule. It was quite unfortunate that the mother ended up engaging in ongoing “telephone tag” with Merrymount. It was also the mother’s unchallenged evidence that she was not in receipt of some of the messages left for her from Merrymount.

[40] I find that the paternal aunt, to some extent, failed to appreciate, and attempt to understand, that the mother’s personal struggles most likely were impacting on her ability to finalize the access arrangements. The paternal aunt, I find, should not have stopped arbitrarily using Merrymount in early September 2015 and, arguably, that may be viewed as non-compliance with the order. The letter just added more confusion for the mother as to the access arrangements. The paternal aunt, in fact, was told on June 4, 2015 by the coordinator at Merrymount that “staff attempt to understand why the party is not showing up for their visits.”

[41] While there is some blameworthy conduct on the mother’s part, I find that the paternal aunt could have demonstrated more sensitivity to the mother’s plight. It is unclear what would have prevented the paternal aunt simply from going to the mother’s residence, picking her up and attending at Merrymount together to finalize the schedule.

[42] I will return later in these reasons to the question of access.

[43] The evidence is that the mother did not respond to the September 4, 2015 letter, and the mother has not had access to the child subsequent to the final order dated March 10, 2015.

Discussion

[44] The authority of the court to dispense with the mother’s consent is found in s. 138 of the Act:

138. 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.

[45] The condition in s. 138(b) is satisfied as both parents have received notice of the proposed adoption and the motion to dispense with the mother’s consent.

[46] The Act specifies in s. 136(2) the factors that a court must consider when determining a child’s best interests in a proceeding under Part VII dealing with adoption:

136(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:

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 birth 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.

[47] The analysis that a court should undertake in relation to dispensing with a parent’s or other person’s consent to adopt was summarized by Robertson J. in M.A.L. v. R.D.M. at para. 5:

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

1. The court must consider the best interests factors in subsection 136(2) of the Act;

2. The court must balance what the child will gain and lose, with 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 family reality.

(footnote omitted)

[48] Other cases have followed the aforesaid analysis of Robertson J.: see, for example, the decisions of Tobin J. in J.C.S. v. C.B.R.S., 2011 ONCJ 191 (O.C.J.) at para. 19 and O’Connell J. in J.D.R. v. M.K.L., 2015 ONCJ 81 (O.C.J.) at para. 20.

[49] The first criterion in M.A.L., supra, is a consideration of the child’s best interests and, accordingly, I consider the relevant circumstances listed in s. 136(2).

[50] In relation to paragraphs 1 and 2 of s. 136(2), the evidence is not in dispute that the applicants have parented the child since June 2013, at which time he was approximately ten months of age. The applicants have attended to all parental responsibilities for the child, including the child’s health, day-care placement, and recently the child’s attendance at school. The child is thriving in the applicants’ care, is developing normally and there is no evidence to suggest that the child has any medical or developmental issues.

[51] In relation to paragraph 5, there are two aspects that need to be considered. First, there is the child’s relationship with his proposed adoptive family. The evidence supports the finding, which I make, that since the child came into the applicants’ care, that the child has been part of a secure and loving family consisting of the applicants and the child’s adoptive sister. The continuation of that secure family relationship is important to the child. Secondly, there is the child’s relationship with his parents. The evidence is that the child has no relationship with the father and that the child has no knowledge, as yet, as to the identity of his biological father. The paternal aunt deposes that the child will be told about his father “when it is developmentally appropriate.”

[52] The paternal aunt does depose that the child understands that the mother is his biological mother. However, other than access visits during the course of the protection proceeding, and other than a period of several months ending when the child was approximately four months of age during which the child was in the mother’s care, the child has not had any ongoing relationship with the mother. In her evidence, the mother fails to address in any meaningful way, if at all, the extent to which she has addressed the protection issues relating to her that prompted Society involvement.

[53] In her factum and her submissions, the mother emphasized her lack of access to the child. The relief requested in the factum includes a request for a direction from the court as to “restarting” her access.

[54] I do agree with the applicants’ submission that access is not a justiciable issue that is before the court, either in the adoption application or the motion. Further, when an adoption order is made, s. 160 of the Act prohibits a court from making an order under Part VII for access to a child by a birth parent or a member of the birth parent’s family.

[55] The reality is that there is an existing access order providing supervised access by the mother to the child. This access order, having been made at the same time as the custody order under s. 57.1, is deemed to have been made under the Children's Law Reform Act, R.S.O. 1990, c. C.12: s. 57.1(1) and (2) of the Act.

[56] During oral argument, although this issue was not before the court, it was the applicants’ submission that an adoption order in a family adoption does not terminate an existing access order in favour of a parent. The applicants relied on the decision of the Court of Appeal for Ontario in R.(S.) v. R.(M.), 1998 CarswellOnt 4763 (Ont. C.A.) for the principle that access orders made before a family adoption survive the adoption order. [1]

[57] As the access issue was not before the court, I make no specific finding in these reasons as to what effect an adoption order may have on the existing access order in favour of the mother. That issue, including the issue of whether the existing access order should be “restarted” or otherwise varied, is left for determination by the court in a properly constituted proceeding.

[58] I conclude, in relation to paragraph 5, that any future relationship that the child may have with his mother is speculative at best, and is contrasted by the known and secure placement that the child has as a member of his proposed adoptive family.

[59] In relation to paragraph 6, the mother was critical of the applicants, alleging they failed to maintain a relationship between the child and his siblings, T. and D. I find that the mother’s criticism is not supported by the evidence.

[60] On March 10, 2015, when making the final order placing the child in the custody of the paternal aunt, Garson J. also made a final supervision order placing the children, T. and D. in the care of the maternal grandmother, subject to Society supervision and terms and conditions. Later, on status review, Vogelsang J. made a final order dated October 8, 2015, terminating the final supervision order made by Garson J. and ordering that the maternal grandmother have custody of T. and D. pursuant to s. 57.1 of the Act. That order was silent as to any access.

[61] The paternal aunt is clear in her evidence that both she and her husband made “every effort” to maintain the relationship between J. and his brothers, T. and D., including arranging outings for all three boys together. However, the paternal aunt deposes that after the March 10, 2015 order, placing J. in her custody, that the maternal grandmother failed to respond to repeated attempts by the applicants to facilitate access between the three boys.

[62] The basis of the mother’s criticism of the applicants is unclear, as she would have no personal knowledge of the efforts made by the applicants to continue contact between J. and his two brothers after March 2015.

[63] Further, the mother deposes that she is “not on the best of terms” with her mother (being the three children’s maternal grandmother). It is the mother’s evidence that when she did speak to the maternal grandmother about the sibling access issue, that the maternal grandmother stated that she is not worried about J., but more concerned about T. and D., who are in her custodial care. This statement, I find, provides some corroboration of the paternal aunt’s evidence that the maternal grandmother was not responsive in accommodating sibling access.

[64] The mother adduced no evidence to contradict the paternal aunt’s evidence as to the efforts made by the applicants to maintain sibling access.

[65] Further, similar to the issue of the mother’s access to the child, the issue as to sibling access is not before the court and is not a justiciable issue in the case at bar. I am satisfied, on the evidence, that the applicants do want to foster a relationship between the siblings but that they have been prevented from doing so because the maternal grandmother has not responded to their requests.

[66] All three boys clearly have a relationship with each other. It is most unfortunate that the relationship between J. and his brothers, at this time, is not being maintained. The responsible custodial caregivers for these children are encouraged to cooperate and make those arrangements.

[67] On the matter of sibling access, I raise the following issues but make no findings as to those issues:

(a) the issue of whether the paternal aunt, or both applicants, who support sibling access, should be obligated to start a proceeding for sibling access that would include the maternal grandmother as a party;

(b) the issue as to whether such a proceeding, if brought, should be made prior to an adoption order;

(c) the issue as to whether the mother, or for that matter the father, can, or should, start a proceeding to compel sibling access, to include the paternal aunt (or perhaps both applicants) and the maternal grandmother as parties; and

(d) the issue of whether a proceeding by the mother or the father, if brought, should be commenced prior to an adoption order.

[68] Further, in relation to paragraph 6, the child’s relationship with his birth parents has been dealt with earlier in the discussion in relation to paragraph 5.

[69] Dealing with paragraph 7, the importance of the child’s continuity of care with the proposed adoptive applicants has been discussed. Disruption of that relationship would be detrimental to the child.

[70] Dealing with the three remaining principles in M.A.L., I find that the child is too young for the purpose of considering his wishes and, in any event, there is no evidence as to the child’s wishes.

[71] I consider the last two principles in M.A.L. together: first, balancing what the child will gain and lose with emphasis on what the child will gain and, secondly, a consideration of the child’s existing family reality.

[72] The gain for the child will be to secure his place as a member of the adoptive family. The child will enjoy the benefits that will accrue from an adoption. I rely on and adopt the following statement made by McSorley J. in C.(P.) v. C.-G.(P.C.), 2004 ONCJ 130, 2004 CarswellOnt 3212 (Ont. C.J.) at para. 36 in part:

36 … adoption brings with it similarity in family name, security at home in a family unit, benefit of stability in inheritance situation or upon the death of a biological parent, confirmation of the reality of who is doing the parenting and reaffirmation of sibling relationships. Weighing these advantages against unknown, future and unlikely benefits from the biological father, this factor must be given great weight in these circumstances.

[73] The advantages to the child, when compared with the speculative future benefits, if any, to be gained from a relationship with the mother, outweigh significantly any loss that the child would have in ceasing to be, in law, the child of the mother on the making of an adoption order.

[74] It is necessary to address one further issue raised by the mother. The mother deposed having been told by the father that he has a trust fund that has been “conveyed or signed over” to the paternal aunt. The mother further deposes having been told by the father that the paternal aunt will sign over the trust fund back to the father, under conditions that the father does not reside with or have any relationship with the mother and that the father consents to the adoption. The mother adds “I do not believe that there is anything in writing.” The mother then characterizes this as a “bribe.”

[75] The father, in his affidavit, categorically denies the mother’s allegations. He deposes that no such trust fund ever existed. He points out that he voluntarily signed the consent to adoption after receiving independent legal advice. The father characterizes the mother’s allegations as “inflammatory and malicious.” The father further deposes that the mother was angry about the adoption application and that she told the father that she would do everything that she could to prevent the adoption and to cause the paternal aunt to spend as much money as possible in pursuing the adoption application.

[76] For her part, the paternal aunt categorically, strenuously and unequivocally denies the mother’s allegations as to bribery and the existence of a trust fund.

[77] Somewhat curiously, in her factum at paragraph 25, the mother submits, in part, that whether there is such a trust fund depends on the applicants’ reply and that, if there is no trust fund, or if there never has been a trust fund, then the mother will “withdraw the same as an issue.” At the hearing of the motion, the mother withdrew this allegation.

[78] The mother’s allegations of bribery and dishonesty, at all material times, were bereft of merit. Her conduct in making the allegations was pernicious and irresponsible in the extreme.

[79] Accordingly, I am satisfied on the basis of the evidentiary record that the applicants have established that the order sought is in the child’s best interests, and that the mother’s consent should be dispensed with.

Order

[80] For the foregoing reasons, I make the following order:

1. The consent of the respondent mother to the proposed adoption is dispensed with.

2. If the parties are unable to agree on costs, then the parties are at liberty to make written costs submissions by forwarding same to the trial coordinator. The applicants’ submissions shall be forwarded within two weeks; any responding submissions shall be forwarded within two weeks thereafter and reply, if any, within one week thereafter. The costs submissions shall not exceed two typed pages, double-spaced, together with any authorities, offers, time dockets and bills of costs.

“Justice Victor Mitrow” Justice Victor Mitrow Date: May 18, 2017 Released: May 19, 2017

Footnotes

[1] The applicants also relied on the decisions of the Ontario Court of Justice in S.B. v. N.A. and R.C. et al. v. M.K. et al.. Also, it is noted that s. 143(1) of the Child and Family Services Act, which provides for the termination of every order respecting access, applies only when a child is placed for adoption by a society or licensee.