This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45. -(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster– parent or a member of the child’s family.

46. -(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: A61/2017 Date: 2017-11-22 Superior Court of Justice - Ontario

Re: R.C. and T.G., Applicants And: A.C., Respondent B.D., Respondent

Before: The Honourable Madam Justice L. Madsen

Counsel: Hendrik Keesmaat, Counsel, for the Applicants Respondent, Self-Represented

Endorsement

[1] The Applicants bring an Application to dispense with the consent of the Respondents to the adoption of the child [“the Application”], C.C., born […], 2013 [“the child”].

[2] For the reasons set out below, the Application to Dispense with Consent is granted.

Facts and Chronology

[3] The Applicant R.C. is the child’s great uncle. He has been in a common law relationship with T.G. since 2012. T.G. has two children, aged 13 and 16, to whom R.C. has been a parent. The Applicants are engaged to be married in 2018.

[4] The child C.C. was born […], 2013. The child’s mother, A.C., was 16 years old when the child was born. The child’s father is B.D., who has not been involved with the child since he was born.

[5] After the child was born, the mother attempted to return to school. There were difficulties with the mother’s care of the child. The child’s grand-mother (and mother of A.C.), S.P., asked the Applicants to care for the child.

[6] The child has lived with the Applicants since October 20, 2014, now more than three years ago.

[7] In August of 2015, the mother and the Applicant R.C. entered into an Agreement under which the Applicants were to care for the child. The Agreement states that the Applicant R.C. is to have “full and complete custody, care and control” of the child and that he may take “whatever steps he wishes to act in her [the mother’s] place as custodial parent and to do all things for [the child] in the place of his natural parent.” The Agreement is witnessed but it is unclear whether the mother had independent legal advice in relation to the Agreement.

[8] The mother has made no effort to see the child since he came into the Applicants’ care.

[9] In 2016, documents were prepared for the purpose of a consent adoption. A lawyer was contacted to provide legal advice to the mother. The mother received legal advice and did not sign the documents. The mother was told by her lawyer that she could receive counselling. The matter was put on hold for that purpose. It is unknown whether the mother received counselling.

[10] The Applicants made a number of efforts to locate the mother, including contacting her boyfriend’s mother. On May 18, 2017, the Applicant R.C. spoke with the mother by telephone and told her about the Application to dispense with her consent to the adoption. R.C. states that the mother appeared more concerned with the fact that R.C. had contacted her boyfriend’s mother than with the proposed adoption of the child.

[11] The Applicant R.C. contacted the child’s father. They spoke by telephone on May 8, 2017 and R.C. states that the father agreed to consent to the adoption. However, messages left by R.C. regarding having the paperwork completed went unanswered.

[12] The mother was served with the Application materials on September 28, 2017 through personal service. She has not filed responding materials.

[13] The father was served on September 30, 2017 through the documents being left with his roommate and by mail to his place of residence. He has not filed responding materials.

[14] The child has now lived with the Applicants for over three years. He has a sibling relationship with the Applicant T.G.’s two children. The family lives in what the Applicant R.C. describes as a good neighbourhood in a home where he has his own room, and there is a large back yard. The Applicant R.C. describes a happy blended family, in which the child is thriving.

Law and Analysis

[15] Under the Child and Family Services Act, R.S.O. 1990 c. C.11 [CFSA], the consent of the child’s parents is required for an adoption. The Child and Family Services Act provides at section 137(2) as follows:

Section 137(2) CONSENT OF A PARENT, ETC – 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

[16] Both the mother and the father are parents under the CFSA, so as a starting point, their consent to the child’s adoption is required.

[17] The CFSA also provides, however, for dispensing with parental consent in certain circumstances. Section 138 provides as follows:

Section 138 DISPENSING PERSON CONSENT – The Court may dispense with a consent required under section 137 for the adoption of a child, except the consent of a 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.

[18] At section 136(2), the CFSA sets out the factors which must be considered by the Court when determining what is in a child’s best interests:

Section 136(2) BEST INTERESTS OF CHILD -- 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.

[19] In L.(S.M.L.) v. M.(J.K.), 2016 ONSC 3198 at paragraph 16, the Honourable Justice Pazaratz set out the applicable law in relation to an Application such as this to dispense with parental consent, as follows:

a. Section 138 of the CFSA is conjunctive. The criteria in both clauses (a) and (b) must be met: C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.). 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. R. (N.J.) v. M. (R.J.), 1994 18216 (ON CJ), [1994] O.J. No. 1331(Ont. Prov. Div.). The court must consider the best interests factors set out in s. 136(2). Lott v. MacRae, 2005 7659 (ON SC), [2005] O.J. No. 1060, 2005 CarswellOnt 1069 (Ont. S.C.J.). 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. R. (N.J.) v. M. (R.J.) (supra). The Court must be satisfied that the best interests requirement has been established "beyond the mere balance of probabilities." W. v. C. (1981), 1981 238 (ON CJ), 35 O.R. (2d) 730 (Ont. Fam. Ct.) 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. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.). 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), 1992 14028 (NS CA), 42 R.F.L. (3d) 400 (N.S. C.A.). The court must balance what the child will gain and lose, with emphasis on what the child will gain. Lott v. MacRae (supra). There must be "cogent" benefits to the child in order to terminate the blood relationship. K. (A.) v. E. (A.), 2013 ONSC 5421 (Ont. S.C.J.); R. (N.J.) v. M. (R.J.) (1994), 1994 18216 (ON CJ), 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 v. Blunden (1980), 1980 3761 (NS CA), 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. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.); L. (S.I.) v. L. (L.J.), 1985 707, 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 CarswellOnt 299 (Ont. U.F.C.); L. (M.) v. M. (S.) (1989), 13 A.C.W.S. (3d) 259, [1989] O.J. No. 3, 1989 CarswellOnt 1385 (Ont. 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 v. Cherrett (1978), 1978 2149 (NS CA), 6 R.F.L. (2d) 121(N.S. C.A.). 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 (1974), 1974 2162 (ON CA), 19 R.F.L. 367, [1974] O.J. No. 1291, 1974 CarswellOnt 975 (Ont. H.C.), 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. M. (B.A.) v. B. (C.G.) (1987), 1987 5148 (NL SC), 10 R.F.L. (3d) 85 (Nfld. U.F.C.). j. The decision must take into account the child's wishes, to the extent that they can be ascertained. Lott v. MacRae (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. S. (J.C.) v. S. (C.B.R.), 2011 ONCJ 191 (Ont. C.J.). k. The court must consider the child's existing family reality. Lott v. MacRae (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: Pennington, Re (1980), 1980 4362 (NS SC), 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. M. v. B. (1984), 1984 4847 (ON SC), 41 R.F.L. (2d) 187 (Ont. Co. Ct.). 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. L. (S.I.) v. L. (L.J.) (1985), 1985 707 (ON SC), 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. (A.) v. E. (A.) (supra); C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.); S. (J.C.) v. S. (C.B.R.) (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. (A.) v. E. (A.) (supra); M. (D.M.), Re, 2008 ABQB 564 (Alta. Q.B.).

[20] I make the following findings with respect to the child’s best interests.

a. The child has lived with the Applicants since he was ten months old and is now almost four years of age. The Applicants’ home is the only home he would have memory of at this point. It would be detrimental to the child to disrupt his place in the home he has known for most of his life. b. The child has a secure place as a member of the Applicants’ family and has sibling relationships with the Applicant, T.G.’s children. He is content and thriving. c. The child is related to the Applicant R.C. by blood. R.C. is his great uncle. R.C. has a loving and committed relationship with his partner T.G. This is a stable family unit. d. The child has no relationship with his father B.G., who has not been involved with the child at any point since his birth. e. The mother has not made an effort to see the child since he moved to the Applicants’ home in October 2014. The child does not have a relationship with the mother. f. The child will benefit from a secure relationship with the Applicants through adoption.

[21] As required under section 138 of the CFSA, both parents have received notice of the Adoption Application and the Application to dispense with their consent.

[22] Accordingly, the Applicants have met both parts of the test under section 138: the Court is satisfied that dispensing with consent is in the children’s best interests; and, both parents have received notice of the Adoption Application and the motion to dispense with consent.

[23] In arriving at this conclusion, this Court has considered the applicable law as summarized by Justice Pazaratz and set out at paragraph 19 herein.

[24] Accordingly, this Court grants the Application to dispense with the parents’ consent to the adoption of the child.

[25] In accordance with section 148 of the CFSA, an adoption Order cannot be made until the time for commencing an appeal of the Order dispensing with consent has expired, or, if an appeal is taken, it has been finally disposed of or abandoned.

[26] Therefore, this Application for adoption is adjourned to the Trial Coordinator of this Court. If no appeal has been commenced within 30 days of this date, the Adoption Application is to be brought to my attention by the Trial Coordinator. An updating Affidavit is required to be filed in the Court Record by the Applicants.

Madsen, J. Date: November 22, 2017