Court File and Parties

COURT FILE NO.: FS-23-102-00AP

DATE: 20231219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: P. L., Appellant

AND:

J. C., Respondent

BEFORE: Justice David A. Broad

COUNSEL: Jason Timms, for the Appellant

Respondent - not represented and did not respond

HEARD: October 31, 2023

REASONS FOR DECISION

Background

[1] The appellant seeks to adopt his stepson L.L. (the “child’) who is the biological child of the appellant’s spouse J.L. (the “mother”). The appellant and the mother were married in August 2016. They share two other biological children together.

[2] The parties’ and the child’s names are initialized in these Reasons to protect the privacy of the child.

[3] The appellant was introduced to the child when the child was two months old. Pursuant to a Care and Custody Agreement dated April 7 2016 the respondent (the child’s biological father) emancipated all ties to the child, has not had any contact with the child since two weeks after his birth and has consented to the appellant’s adoption of the child. The child is unaware of his biological father’s existence and believes that the appellant is his biological father. The mother has also consented to the child’s adoption by the appellant.

[4] The appellant brought an application for an order for adoption of the child pursuant to s. 199(2)(c) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sch.1 (the “CYFSA”) eight days after the child’s seventh birthday. As a consequence of the child being over seven years of age an order for the adoption would require the child’s written consent pursuant to s. 180(6) of the CYSFA unless this requirement is dispensed with by the court.

[5] S. 180(9) provides as follows with respect to the requirements for the court to dispense with consent by a child over seven years of age to its adoption:

(9) The court may dispense with a person’s consent required under subsection (6) where the court is satisfied that,

(a) obtaining the consent would cause the person emotional harm; or

(b) the person is not able to consent because of a developmental disability.

[6] The child was diagnosed by Dr. Gregory Knoll, Ph.D., C. Psych, with an Autism Spectrum Disorder (ASD, level 1 with anxiety) and ADHD, Combined Presentation. In connection with this diagnosis, the child has been receiving regular Cognitive Behavioural Therapy from Dr. Knoll.

[7] The applicant sought an order of the court to dispense with the child’s consent to the adoption on both bases, namely that he is not able to consent because of his developmental disability, or alternatively, obtaining his consent would cause him emotional harm.

[8] The application was initially supported by an affidavit from each of the appellant and the mother as well as a letter from Dr. Knoll offering his professional opinion that, given the child’s age and the limitations imposed by his ASD, the child does not have the capacity to provide consent to the adoption.

[9] The application judge Justice K.A. Baker of the Ontario Court of Justice directed a hearing with viva voce evidence in respect of the application to dispense with the child’s consent. The hearing was conducted on December 13, 2022.

[10] Following a voir dire Dr. Knoll was qualified to give expert opinion evidence in the field of clinical psychology of children but was not qualified to offer an opinion respecting the child’s ability intellectually or otherwise to give consent to an adoption in light of his acknowledgement that he lacked expertise within this narrow scope.

[11] Dr. Knoll testified at the hearing as did the mother and the appellant. The application judge released her detailed Reasons for Judgment on March 16 2023 (reported at 2023 ONCJ 127) dismissing the appellant’s application to dispense with the child’s consent to the adoption, concluding that “while the application materials are compelling on the perspective merits of [the child’s] adoption by the Applicant, I am not persuaded that the evidence meets the stringent requirements imposed by the legislation to dispense with the child’s consent.”

[12] The appellant has appealed the decision of Justice Baker to deny his request to dispense with the child’s consent to the adoption to this court pursuant to section 215(3.1)(a) of the CYFSA.

Grounds of Appeal

[13] The appellant has appealed the dismissal of his application to dispense with the child’s consent on the grounds that she erred in fact and law by:

Ground One: incorrectly discounting the evidence presented by the mother and accordingly failing to consider self-destructive, delayed development or regressive behaviour exhibited by the child as emotional harm being inflicted upon the child;

Ground Two: failing to consider the evidence presented on a balance of probabilities standard; and

Ground Three: failing to consider the overarching and paramount purpose of the CYFSA, which is to promote the best interests, protection and well-being of children, and accordingly, incorrectly discounting and giving no weight to judgments made under previous legislation which had the same overarching and paramount purpose.

[14] In addition, the appellant submitted that in the event that the circumstances do not satisfy the strict test to dispense with consent to the adoption under the CYFSA the court ought to invoke its parens patriae jurisdiction to order that the child’s consent to the adoption by the appellant be dispensed with, as it is in the child’s best interest to do so.

The application judge’s reasons

[15] The application judge reviewed the evidence of Dr. Knoll, observing that he testified that individuals with ASD exhibit an “adherence to sameness,” leading children on the spectrum to struggle to deal with changes both big and small. Dr. Knoll noted that the child has a predictable routine and structure and, if that were to change, he could regress with respect to his social and emotional issues. When asked whether in his professional opinion the child finding out that his father (the appellant) is not his biological father would put him into a state of regression, he responded that there would be a period of shock and of required adjustment which would last through a certain developmental period and then the child would slowly move forward and begin to process again.

[16] Dr. Knoll noted that the manner by which the child would learn that the appellant is not his biological father would be important. If he learned of it through a court proceeding it would be very stressful however if he found out throughout the duration of a few therapy sessions in a safe environment, the reactions could be quite variable.

[17] Dr. Knoll described the child as “quite bright” with a verbal intelligence at the 50^th percentile, however he noted that he is very concrete and literal and accordingly would have difficulty comprehending abstract concepts like consent and adoption.

[18] The application judge noted the mother’s testimony in which she described the child’s difficulty with change in any form. Even minor changes can trigger considerable disruption and can lead him to become aggressive, particularly to himself. The mother stated that revelation of the appellant’s actual status would have a significant impact on the child and offered the opinion that learning this information would “destroy” the child. In response to a question from the court, the mother agreed that if the information were to be conveyed to the child through a therapeutic process it “might not” cause him emotional harm.

[19] However, she reiterated her belief that the child would be “devastated” by being informed of the actual situation and that the risk to the child was “high.”

[20] In his testimony the applicant stated that revelation of the actual situation would be “pretty detrimental” to the child’s emotional well-being.

[21] The application judge began her analysis by considering the nature of the evidence that would be needed to support a finding that obtaining the consent of the child would cause the child emotional harm. She made reference to the observations of Phillips, J. in A.C. v. V.A., 2012 ONCJ 7 in which he identified the danger of relying upon the evidence of prospective adoptive applicants which could lead to denying the child notice and subsequent participation in the proceeding, concluding that “the court must guard against the convenience of allowing the motion, and its duty to determine whether the applicant’s concerns are self-serving or whether the child’s emotional health is truly at stake.”

[22] The application judge also made reference to the case of Re: D.S., 2001 28177 (Ont. S.C.J.) in which Justice Linhares de Sousa, J. at para. 69, stated that some expert evidence from a qualified mental health professional or child development specialist might be required to prove the conditions or behaviours of the child and their serious quality in many instances, but “a competent and appropriate caregiver may also be a very reliable witness to the serious aggressive or self-destructive behaviour of the child without being a qualified mental health expert.”

[23] The application judge expressed the view that Justice Linhares de Sousa’s comment in Re: D.S. respecting the reliability of the evidence of a competent and appropriate caregiver was obiter and concluded “it would be a considerable stretch to interpret this single sentence as support for the notion that the court can (or should) rely largely upon evidence from a parent interested in the outcome to find risk of emotional harm.”

[24] The application judge gave no weight to Dr. Knoll’s initial written opinion that the child lacks capacity to consent, based on his concession that he lacked the expertise to opine on that precise point.

[25] Based on Dr. Knoll’s viva voce evidence, the application judge noted that, although the child was “slow” to process information and that it would be “hard” for him to comprehend abstract concepts such as consent and adoption, he did not say that the child was incapable of doing these things.

[26] With respect to the effect of the evidence of the mother and the appellant, the application judge concluded “it is very clear that the [appellant] and [the mother] are anxious to provide [the child] with the stability and security that adoption would provide. This motivation, while perfectly understandable, must be factored into any assessment of the reliability of their evidence.”

[27] She concluded that on the evidence she was unable to find that the child lacks capacity to consent, observing that there is little doubt that because of his challenges, the child will have a more difficult time than most seven-year-old children in understanding the concepts of adoption and consent to adoption.

[28] The application judge then went on to consider the question of whether the child would suffer emotional harm should his consent to the adoption be sought.

[29] Although acknowledging that there was evidence that the child is likely to experience some anxiety as a result of learning that the applicant is not his biological father, the application judge concluded that there was nothing in Dr. Knoll’s evidence to support a conclusion that he would be likely to suffer serious anxiety if the information was given to him in a sensitive and child-focused manner. She noted that neither the applicant nor the mother gave evidence specific to the issue of anxiety, their affidavit evidence being that the child would be “confused” by the revelation resulting from his consent being sought.

[30] On the issue of possible regression, the application judge characterized Dr. Knoll’s evidence as “largely speculative.” She stated that he emphasized that the manner in which the information was provided would be important in that, if it were presented in a sensitive and therapeutic environment, it would be “far less likely” to cause the child stress.

[31] The application judge discounted the mother’s evidence suggesting that the revelation would in fact cause the child emotional distress and regression, especially given her strong motivation to have the adoption concluded, with the same being true of the applicant’s evidence.

[32] The application judge observed that the threshold to dispense with consent to adoption for a child over seven years is high for good reason, as children should be involved in the decisions that are made in relation to them. She also commented on the significance that Canada is a signatory to the United Nations Convention on the Rights of the Child which provides that children should be given the opportunity to be heard directly and that where a child is heard indirectly, there must be no conflict of interest on the part of the child’s representative.

[33] Although the application judge did not suggest that there is a conflict of interest on the part of the appellant and the mother, she commented that “their interest in an uncomplicated completion of the adoption must be considered in assessing their objectivity in giving their evidence about [the child’s] capacity and the effect of being asked for consent.”

Standard of Review

[34] The standard of review on appeal in the child protection context was expressed succinctly by Lococco, J. in the recent case of Catholic Children’s Aid Society of Toronto v. D.A., 2022 ONSC 1571 at paras. 46-51 as follows:

The standards of review for appeals are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

On questions of law, the standard is correctness: Housen , at para. 8. On questions of fact, the standard is palpable and overriding error: at para. 10.

On questions of mixed fact and law, the standard is correctness where there is an extricable legal principle. Otherwise, the standard of review on questions of mixed fact and law is palpable and overriding error, including with respect to the application of the correct legal principles to the evidence: Housen , at paras. 36-37.

A palpable and overriding error is "an obvious error that is sufficiently significant to vitiate the challenged finding": Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 39, citing Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at p. 267 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291.

In the child protection context, previous case law has emphasized the particularly high degree of deference owed to the trial judge on appeal.

In Children's Aid Society of Toronto v. P.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 14, leave to appeal refused, [2013] S.C.C.A. No. 1112, the Court of Appeal identified two overarching principles that apply on child protection appeals: "the paramount consideration of the best interests of the child and the standard of review." At paras. 15-16, the court explained:

First, the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.

Second, the degree of deference owed to the trial judge is particularly high in child protection proceedings. In C.(G.C.) v. N.B. (Min. of Health & Community Services), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court described the standard of review applicable in such cases as "... trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment."

Discussion

[35] As noted previously, the test which must be satisfied for the Court to dispense with the consent of the child over seven years of age to the adoption has two disjunctive components, namely that:

(a) obtaining the consent would cause the person emotional harm; or

(b) the person is not able to consent because of a developmental disability.

[36] On appeal the appellant relies upon the ground that obtaining the child’s consent would cause him emotional harm.

[37] The phrase “emotional harm” is not specifically defined for the purpose of Part VIII of the CYFSA dealing with adoption. Some courts have utilized for the purposes of section 180(9)(a), the meaning ascribed to “emotional harm” in Part V dealing with child protection at section 74(2)(f) as a component of one of the grounds for finding a child in need of protection, where “emotional harm,” is demonstrated by serious,

(a) anxiety,

(b) depression,

(c) withdrawal,

(d) self-destructive or aggressive behaviour, or

(e) delayed development.

(see A.C. and V.A., at para. 61)

[38] There is a distinction between the ways in which the definition of “emotional harm” may be applied as between Part V (dealing with child protection) and Part VII (dealing with dispensing with the child’s consent to adoption). In Part V the description of the ways in which a child may suffer emotional harm applies with respect to harm having occurred in the past at paras. 74(2)(f) and (g) and also with respect to the risk of it occurring in the future at paras. (h) and (i), whereas section 180(9) is prospective only, asking only whether obtaining consent to adoption would cause the child emotional harm. The context in which the definition is applied may affect the nature of the evidence necessary for the court to make a finding of emotional harm.

[39] Unlike anxiety and depression, which require psychological diagnoses, withdrawal and aggression are not purely psychological terms but are also terms that are commonly understood by laypersons. The dictionary definition of withdrawal found in the Concise Oxford Dictionary, 10th ed. is 'a retreat from social contact' or 'unsociable'. Aggression is defined as 'hostile or destructive behaviour' (see Children’s Aid Society of Ottawa v. P.(Y.), 2007 14325 (ON SC), [2007] O.J. No. 1639 (S.C.J.)).

[40] As noted above, in her consideration of the possible sources and nature of the evidence required to support a finding of a risk of emotional harm to a child in obtaining its consent to adoption, the application judge discounted the possibility of such evidence being tendered by a competent and appropriate caregiver who is not a qualified mental health expert, rejecting the applicability of the observation of Linhares de Sousa, J. in Re: D.S. in support of that proposition as “obiter.”

[41] The application judge went on to state that “moreover, as Phillips, J. noted in A.C. and V.A., the cases in which non-expert opinion from a parent about emotional harm are dated, and since their reporting, Canada has ratified the United Nations Convention on the Rights of the Child.”

[42] In my view, and with respect, in rejecting the possibility of reliable evidence respecting the risk of emotional harm, particularly relating to self-destructive or aggressive behaviour or delayed development, being given by a competent and appropriate caregiver, including a parent, the application judge erred in law.

[43] In the recent case of Catholic Children’s Aid Society of Hamilton v. V.A.,N.E. and M.E., 2022 ONSC 4684 Masden, J. at paras. 128-130 reviewed the divergence in the jurisprudence between cases holding that expert evidence is required to establish emotional harm or risk of emotional harm and those that have held that expert evidence of emotional harm or risk of emotional harm is not a prerequisite, as follows:

To show actual emotional harm or risk of emotional harm, expert evidence is often helpful both to establish the specific harm or risk and draw the link to the caregiver. It may be that the evidence of a participant expert such as the child's counsellor could suffice. See Catholic Children's Aid Society of Ottawa v. C.L., 2018 ONSC 1241, 2018 CarswellOnt 2894 at 26. The standard of proof for determining whether there is a causal connection between the emotional harm and the parental conduct or neglect has been established is a lesser standard than the balance of probabilities. See Children and Family Services for York Region v. S.A., 2009 CarswellOnt 8751 at 20; S.(D.), Re, 2001 28177 (ON SC), 2001 CarswellOnt 733 .

Some courts have held that expert evidence is required to establish emotional harm or risk of emotional harm, and a link to parental conduct or neglect. In A.C. v. V.A., 2012 ONCJ 7, 2012 CarswellOnt 516, Phillips J. cited Linhares de Sousa J. in S.(D.), Re (cited above) and Steinberg J. in Catholic Children's Aid Society of Hamilton-Wentworth v. L. (C.), 2002 CarswellOnt 3713, at 4, concluding at para. 69 that "the weight of the caselaw is clear that, in child protection cases, in order for the court to be satisfied of the sufficiency of evidence at a finding of 'emotional harm' there must be evidence offered beyond the competence of lay persons. Judges need the assistance of expert witnesses." Similarly, Kukurin J. stated in Chatham-Kent Children's Services v. C.P., 2014 ONCJ 395, 2014 CarswellOnt 11682 at para. 22 that to show risk of emotional harm in that case, the society would need "fairly heavy duty" expert evidence.

However, numerous other cases establish that expert evidence of emotional harm or risk of emotional harm is not a pre-requisite. Thus, in Children's Aid Society of Ottawa v P.Y. and A.S., 2007 CarswellOnt 2635, the court held that while expert evidence would have been useful, it was not required. The court also noted that terms such as "withdrawal" and "aggression" are not only psychological terms but are commonly understood. See also Catholic Children's Aid Society of Toronto v. E.S., 2016 ONCJ 279, 2016 CarswellOnt 7840 at 94 in which Murray J. stated that sometimes a child's distressed reactions to parental behaviour are sufficiently clear that a finding of a risk of emotional harm can be made without expert evidence. Further, in Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251, 2019 CarswellOnt 5568, on appeal, Horkins J. held that it is not an error to find emotional harm or risk of emotional harm in the absence of expert evidence. See para 59. See also Chukwunomso v. Ransome, 2017 ONCJ 121, 2017 CarswellOnt 3332 per Spence J.

[44] On the facts in V.A., N.E. and M.E. Madsen, J. found that the child at issue was at risk of alienation which carried with it a risk of emotional harm. In making these findings, she recognized that she did not have expert evidence, but observed that she was “not diagnosing a syndrome or condition but making factual findings about what has happened in this family.”

[45] In light of Madsen J.’s observations and findings in V.A., N.E. and M.E. I am satisfied that the weight of authority is in concurrence with the statement of Linhares de Sousa in Re: D.S. which was discounted by the application judge as “obiter.”

[46] In fairness, it does not appear that V.A., N.E. and M.E. was brought to the attention of the application judge in this case. However, it was released on August 31, 2022 some three and one-half months prior to the hearing and six months prior to release of the application judge’s decision. Moreover, as noted above, Justice Madsen referred to both the decision of Phillips, J. in A.C. and V.A. and that of Linhares de Sousa, J. in Re: D.S. in her analysis.

[47] The application judge’s error in discounting, as a matter of law, the possibility that the mother may offer reliable evidence on the issue of emotional harm was linked to her further discounting the mother’s and the appellant’s evidence, not because of any inherent lack of reliability of their evidence, but due to their positions as parent and prospective adoptive parent of the child. This is exemplified by the application judge’s observation as follows:

Initially, when asked about [the evidence of Dr. Knoll on the issue of possible regression] [the mother] agreed that such a process [providing information to the child in a sensitive and therapeutic environment] might not cause [the child] emotional distress. Her responses to leading questions suggesting that such a revelation would in fact cause [the child] emotional distress and cause regression must be discounted. This is especially true given her strong, and again, understandable motivation, to have the adoption concluded. The same is true of the [appellant’s] evidence.

[48] The sole reason cited by the application judge for discounting the mother’s and the appellant’s evidence concerning regression of the child was the unavoidable positions which the parties occupied in the proceeding, as the mother of the child and the applicant for adoption, and not due to any defect or problem with the evidence which they provided to the court. Moreover, the possibility that bias stemming from their interest in the outcome affected the reliability of their evidence was not put to them to permit them to respond, due largely to the lack of a responding party to cross-examine them. Nevertheless, the application judge, as indicated previously, stated that their interest in an uncomplicated completion of the adoption must be considered in assessing their objectivity in giving their evidence about the risk to the child of being asked for consent. The implication of this conclusion is that the evidence of any caregiver who may be supportive of an application for adoption and who testifies on an application to dispense with a child’s consent, is subject to being discounted on that ground alone. No jurisprudential support for this proposition is apparent. Indeed, it runs counter to the observation of Linhares de Sousa, J. in Re: D.S. that “a competent and appropriate caregiver may… be a very reliable witness.”

[49] In my view, the discounting of the mother’s evidence and that of the appellant on the grounds stated by the application judge represented an error of law and of principle such that the appeal must be allowed.

[50] In light of this finding, it is not necessary to go on to consider the second and third grounds of appeal referred to above, nor to consider the appellant’s alternative request that this court exercise its parens patriae jurisdiction to dispense with the child’s consent to the adoption in the child’s best interests.

Remedy

[51] In my view, no useful purpose would be served by remitting the matter back to the Ontario Court of Justice for a fresh hearing on the issue of whether to dispense with the child’s consent to adoption by the appellant.

[52] The record is complete, consisting of the testimony of Dr. Knoll, the mother and the appellant. The delay occasioned by ordering a re-hearing of the issue of dispensing with the child’s consent would not be in his best interest nor is it warranted.

[53] I am satisfied, based on all of the evidence on the record, that the appellant has satisfied the high threshold for finding that obtaining the child’s consent would cause him emotional harm, manifested by self-destructive or aggressive behaviour, or delayed development.

[54] It is useful to briefly review the evidence on the record.

[55] Dr. Knoll testified that one of the symptoms of an ASD is called “adherence to sameness” consisting of children with ASD struggling to deal with both small changes in their daily lives as well as big changes, like the issue before the court. The stress brought on by change exacerbates the child’s symptoms such that he experiences issues with rigidity and with hyper-focused preoccupations resulting in him exhibiting communication, social and sensory issues.

[56] Dr. Knoll went on to state that if predictability in the child’s life changes or the structure changes, he could regress with respect to his social and emotional issues. It would be hard to speculate how long such regression would last. As indicated above, he thought that there would be a period of shock followed by a period of required adjustment. The regressions would last through a certain developmental period and the child would slowly move forward and begin to progress again.

[57] It is noted in this respect that the definition of emotional harm from Part V of the CYDSA which includes “self-destructive or aggressive behaviour, or delayed development” requires that the harm be “serious” but does not require that it be permanent. Dr, Knoll used the term “slowly” to describe the process of the child’s recovery from a regression that may be brought on from learning that the only father that he has known is not his biological father.

[58] In her testimony the mother described how “adherence to sameness” described by Dr. Knoll manifests itself in serious behavioural issues when the child experiences any change in routine, however minor. This includes becoming aggressive both with her and the appellant, and more so towards himself. He also becomes aggressive and disruptive at school.

[59] The mother expressed the view that discovering that the appellant is not his biological father would “destroy” him. He already recognizes that he is different and has expressed his belief that he does not belong.

[60] In answer to a question from the court, the mother concurred that she “might agree” that if the information respecting the appellant not being his biological father were conveyed to the child through a therapeutic process it “might not” cause him emotional harm.

[61] On re-examination, the mother offered the opinion that the child would be “devastated” to learn that his biological father has other children and does not want anything to do with him. With respect to the prospect of seeking the child’s consent through therapeutic measures, she acknowledged that it could potentially be done in that fashion, but it could also cause him harm, stating that his life would be “upside down” and “destroyed” and he would be “heartbroken,” and it would possibly put him into a very grave state of emotional harm.

[62] For his part, the appellant testified that the child would suffer emotional harm if he were to learn that the respondent is his biological father.

[63] The mother offered detailed evidence of her observations of the child’s behavior in response to changes due to his ASD and her assessment of the risk to him of serious emotional harm demonstrated by self-destructive or aggressive behavior and delayed development by being required to consent to adoption by the appellant. There was nothing on the record to suggest that there were defects, gaps or problems with the mother’s evidence affecting its reliability. The mother’s evidence was augmented by the expert evidence of Dr. Knoll commenting from a therapeutic perspective on the child’s existing condition and offering his professional assessment of the risks of emotional harm to the child’s should his consent to adoption be required, how such emotional harm might be manifested, possible ways in which such risk may be mitigated, as well as the prospects for the child recovering from the emotional harm. It is important to note that Dr. Knoll did not testify that utilization of a therapeutic approach would probably eliminate the risk of emotional harm, but rather the child’s reactions could be “quite variable.” The record discloses that he did not say that such an approach would be “far less likely” to cause the child distress.

Disposition

[64] For the reasons set forth above, the appeal is allowed, and the consent of the child, identified by name and date of birth in the Application, to his adoption by the applicant is dispensed with pursuant to section 180(6) of the CYFSA.

D.A. Broad, J.

Date: December 19, 2023