Warning Regarding Publication

COURT FILE NO.: FA-20-0028-00
DATE: 2025/07/11

WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — 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.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

Ontario Superior Court of Justice

BETWEEN:
J.D.S. (Applicant)
– and –
M.L.M. and P.E. (Respondents)

Applicant Counsel: Brent Balmer
Respondent Counsel: Jean LeDrew Metcalfe (Self-Represented), Phaedra Klodner (Office of the Children’s Lawyer)

Heard: June 16 & 17, 2025
Released: July 11, 2025
Judge: F. Wood

Reasons for Judgment

Background

[1] A.A. was born in August 2018 at 33 weeks gestation. She was addicted to methamphetamines and possibly fentanyl. She received intensive care in hospital for several weeks before she could be released. Her mother, M.M., was unable to care for her. Her father, P.E., was incarcerated. The Children’s Aid Society of the Regional Municipality of Waterloo commenced a protection application and, with the consent of both parents, A. was placed with the Applicant, J.A. An order was made on August 1, 2019, pursuant to which J. was granted custody (the “MacLeod Order”). Additional terms provided that access between A. and each of her biological parents would be at J.’s discretion. A. has resided with J.A. since she was about 2 months of age. Now almost 7 years of age, she believes that J. is her mother and that J’s three biological children are her siblings.

[2] P. was released from custody in March 2020 just before the COVID pandemic struck. On October 13, 2020, J. commenced the within Application, seeking to formally adopt A. On July 21, 2021, an Amended Application was served on P. and M. P. was concerned that he had not been able to arrange access with A. and in February 2022, he commenced a Motion to Change the MacLeod Order. In the spring of 2023, J. and P. entered into a consent with respect to the MTC. P. signed a Consent to Adoption and J. and P. then executed an Openness Agreement which provided for P. to have parenting time 3 times per year, to be supervised by J. or her designate, amongst other terms. This agreement concluded the Motion to Change and ultimately an order was made by Gibson J. on May 1, 2024. Pursuant to that order, A.’s surname was changed from M.’s surname to J.’s.[^1]

[3] Some 10 months later, unhappy with J.’s approach to his parenting time, P. advised of his intention to withdraw his consent. Initially he brought a motion seeking that relief, but ultimately the matter was ordered to be heard as a trial. That trial proceeded before me. J. and M. are still working on terms of a consent and that matter will be addressed before me in several weeks. This trial was strictly about whether or not P. should be given leave to withdraw his consent to the adoption.

Legal Framework

[4] This matter is governed by the Child, Youth and Family Services Act, 2017. By virtue of section 180(1)5 of the Act, J. is deemed to be a parent of A. The MacLeod Order grants her custody of A. with the result that she has the ability to bring this Application without requiring the Society to place A. for adoption (section 183(9)). Pursuant to section 180(2) of the Act, the adoption may not proceed without the consent of both M. and P.

[5] P. did provide his consent, formally signing a Consent to Adoption form. It is that consent which he now seeks to withdraw. Section 21(2) of the Act sets out the criteria for a valid consent that is signed pursuant to the Act. Specifically, a consent is valid if the party signing has capacity, was reasonably informed about the nature and consequences of the consent, gives consent voluntarily and without coercion or undue influence, and has a reasonable opportunity to obtain independent legal advice.

[6] There is no dispute that P. had capacity at the time that he signed. He had a lawyer who was acting for him at that time, and he agreed that his counsel had fully explained the consent and its consequences to him. The consent was signed as part of a broader agreement which resolved his ongoing Motion to Change and included the Openness Agreement pursuant to which he would continue to have parenting time with his daughter. There is no disagreement between the parties that the first, second and fourth branch of the section 21(2) requirements are satisfied.

[7] P. made a reference to feeling ‘rushed’ when he signed the consent. However, the consent was signed almost 3 years after the Adoption Application was commenced, and a year after he had commenced his Motion to Change. He had ample opportunity not only to consider the consent itself, but to consider how he wished to resolve his Motion to Change and what other steps he might have taken in that litigation. I find, therefore, that the third branch of the test is also satisfied.

[8] The parties operated under the terms of the Consent and the related Openness Agreement for many months. P.'s evidence was that the reason he sought to withdraw his consent was because he formed the view, in the winter of 2024, that J. was trying to cut him out of A.’s life and was not abiding by the Openness Agreement. That, however, does not vitiate his consent.

[9] Accordingly, P.'s request to withdraw his consent must be determined pursuant to section 182 of the Act. In S.M.L.L. v. J.K.M., 2016 ONSC 3198, Pazaratz J. compiled the then existing case law relevant to the application of section 182.[^2] Those fundamental precepts remain current today. Without setting out each separate factor, this court has had regard for that list in considering the relevant facts here.

Best Interests of the Child

[10] In determining whether the court should permit P. to withdraw his consent, it must consider only A.’s best interests. When considering A.’s best interests, section 179(2) of the Act directs the court to:

• (a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
• (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
• (c) consider any other circumstance of the case that the person considers relevant, including,
  • (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
  • (ii) the child’s physical, mental and emotional level of development,
  • (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
  • (iv) the child’s cultural and linguistic heritage,
  • (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
  • (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
  • (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and
  • (viii) the effects on the child of delay in the disposition of the case.

[11] Throughout his evidence, P. made it clear that he intended to pursue a further Motion to Change and seek custody of A. if successful in having the consent withdrawn. He was asked specifically whether modifications to the Openness Agreement to provide for clearer and specified parenting time would be adequate and he repeated that he was “going for full custody”. He made this statement several times and there can be no doubt that this was P.’s intention. Accordingly, this court has considered P.’s intention to seek that A. be placed in his care on a full-time basis where appropriate in assessing the various factors.

[12] From the evidence of J., the court is satisfied that A.’s views and preferences about the adoption itself cannot reasonably be ascertained. J. testified that A. suffers from ADHD, anxiety, and panic attacks. Although she does not have a formal educational diagnosis, the court accepts J.’s evidence that A. currently functions at the cognitive level of a 3–4-year-old. There is some suggestion that she may have fetal alcohol syndrome. Ms. Klodner, who has been retained by the Office of the Children’s Lawyer to represent A., submitted that she was unable to ascertain her client’s views and preferences, and that she concurred with J.’s views on this point. Additionally, A. is not currently aware that J. is not her biological mother – ascertaining her views directly about the adoption would require that she be told the true circumstances. While this will need to occur at some point in time, I accept J.’s evidence that she has approached this topic with caution, keeping A.’s best interests at heart. She believes that it is best for A. to be told once there is certainty about her role in the family.

[13] Although there is no direct evidence about A.’s views about the adoption itself, there is evidence that she loves J. as her mother and J.’s children as her siblings. She also loves her pets, has a best friend at her school, and reacts extremely poorly to change. There is no evidence to suggest that if A. could give her views and preferences, they would be anything other than staying where she is.

[14] A. is not an Indigenous, Inuit or Metis child. As a result, this matter is being considered pursuant to section 179(2)(c). The factors listed in that section are neither exhaustive nor necessary considerations. Here, the matter can be determined based on the following considerations:

A.’s Needs

[15] As noted above, A. has ADHD, anxiety, and panic attacks. She may have fetal alcohol syndrome. In addition, she has been diagnosed with elopement syndrome which means that she has a tendency to run away from her caregivers when she is stressed. She does not react well to change and will try to run away from school if, for example, her usual teacher is not present during drop off time. J. has arranged with the school to be advised in advance if there will be a substitute teacher present so that she can prepare A. before school. One of the school’s Educational Assistants has also arranged to be available as often as possible to ease the morning transition. About half of the time the mornings go well, but if they do not, it can take until 10 am for J. to successfully get A. into school.

[16] In addition, A. has severe asthma and a compromised immune system. She takes a number of medications for ADHD, anxiety, asthma and sleep. A. is regularly followed by a respirologist, a paediatrician, a family doctor, and sometimes a counsellor. She sees these professionals regularly. She shares a family doctor with her maternal biological siblings. J. testified that she continues to see this doctor because he followed M. through her pregnancy, has been A.’s doctor since her birth and also sees her maternal biological siblings and is therefore aware of the family medical and social history. Over the years, her medications have been adjusted at regular intervals – her current medications appear to be working well. J. is currently working on developing an Individual Education Plan for A.

[17] J. arranged for counselling for A. to assist her discussing her parentage. That counselling was suspended because A. was often too sick to attend, and it was determined that it should start again once these proceedings are complete.

[18] J. testified that as a result of A.’s complex needs, she has not worked outside the home for some time. A. is a child with complex needs with respect to her physical and mental health, and her educational needs. P. is not currently aware of these needs, nor has he taken steps to ascertain them. He does not have a plan to transition A. from her current care team to a different care team in the event that he were successful in having her placed in his care.

[19] P. blames J. for failing to keep him apprised of A.’s needs. J. conceded that she has not given him extensive information, but she has given him some basic information. P. has made no follow up or additional inquiries about her needs, her care, her medications. There is no evidence that J. has withheld any information when asked.

A.’s Development

[20] A.’s development is discussed above. She is a child with complex needs. J. has clearly expended significant time and effort in meeting A.’s physical, emotional, and psychological needs.

A.’s Race, Ancestry & Heritage

[21] Neither party testified about A.’s race or heritage. Nevertheless, Mr. Balmer conceded in closing arguments that A. would benefit from some connection to P.'s family to ensure that she has a connection to her race, ancestry and heritage.

[22] J. confirmed during her evidence that she agreed that it was important that A. be connected to her father and his family. She agreed to facilitate the visits as provided for in the Openness Agreement and that she would be willing to continue facilitating visits with A.’s paternal grandmother. As described in greater detail below, visits with the grandmother were occurring until recently, when they stopped at P.’s request.

[23] If the formal and informal visits resume, A. will have an opportunity to know her extended paternal family and to be exposed to and learn about her race, ancestry and heritage. J. is committed to facilitating this, but it will be up to P. to do his part to ensure that it occurs.

Importance of Secure Place in Family

[24] J. testified that this is her primary reason for seeking to adopt A. She testified that A. understands the term ‘adoption’ and that once she is told about the adoption, she would know that she has been chosen and has a secure place in the family. She believes that A. would not feel the same security of her place in the family if J. were her legal guardian only. This is particularly acute in light of A.’s special needs, her anxiety and her strong reaction to any change.

A.’s Relationship and Ties with Family

[25] As noted above, A. currently believes that J. is her mother. She has three siblings, aged 17–22, with whom she shares a close and loving bond. She adores her siblings, and they adore her. They participate in various activities with her and by all accounts, given the age difference, they indulge and dote upon her. A. sees J.’s mother weekly and calls her Grandma. She also sees J.’s sibling and nieces regularly, and as far as she is aware, they are her uncle and cousins.

[26] In addition, J. has fostered a relationship with some of A.’s extended biological family. She sees her maternal grandmother about once a month. She did have a number of visits with her paternal grandmother, until P. instructed his mother not to communicate directly with J. J. is willing to continue to foster that relationship if P.’s mother is willing to reach out to her. A. also sees her maternal biological siblings regularly.

[27] The evidence is that A. has no relationship with M. Although J. was willing to consider introducing her, she first wants to have a stable plan in place. She concedes that at some point she will need to tell A. that she is not her biological mother but wants to know exactly what M.’s plans and intentions are before introducing this subject to A.

[28] This court finds that J. has made bona fide efforts to support relationships not only with her own family but also with her extended biological family. Her willingness to support a relationship between A. and P. was perhaps the most contested aspect of this trial. Accordingly, this evidence is discussed here in somewhat greater detail.

[29] P. concedes that he was incarcerated when A. was born and was not released until March 2020. Although he complained that he should have been able to see her while incarcerated, I was presented with no evidence that he ever asked that A. be brought to visit him before March 2020. P. conceded at other points in his evidence that his plan was to build a relationship with A. once he was released.

[30] Unfortunately, his release coincided with the onset of the COVID-19 pandemic. Given A.’s asthma and immune deficiency, J. and her children isolated themselves for 100 days. J. was also nervous about introducing P. into A.’s life. She did not know him and was unsure what impact introducing him would have. She was told by P.’s probation officer that his incarceration resulted from drug trafficking and weapons related charges (this evidence was not tendered for its truth, but rather to provide context about J.’s concerns). P. testified that his communication with J. while he was incarcerated was good, but that things ‘soured’ after his release and J. told him that she wanted to adopt A. J. testified that when she told P. that she wanted to adopt A., his communication became abusive.

[31] After the parties entered into their Openness Agreement, J. arranged for a number of video calls between P. and A. She testified that she was guided by A.’s best interests. She explained to A. that she had a father who wanted to get to know her. She also arranged two in-person visits which went reasonably well. Shortly after the second visit, at the beginning of a video call, while A. was in the room, P. began telling J. that he had a one-bedroom apartment and that he wanted A. to begin spending time at his place. He said something that suggested that A. would come to live with him. This discussion concerned J. – she felt that it was inappropriate to make such suggestions in front of A. at such an early stage and chose to end the call.

[32] P. characterized this as a breach of the Openness Agreement and insisted that at this point J. terminated all contact. J. testified that sometime after this video call, A. asked to call P. J. reached out to P., but he refused, saying that he would address the issue in court. J. also reached out to schedule a third in-person visit, but P. responded by calling her “scum” and messaged “don’t fucking contact me again.” Any further attempts to reach out were met with a response of “see you in court.”

[33] P. conceded that he never brought a motion for interim parenting time, never reached out to J.’s lawyer to ask about parenting time, and that he decided to withdraw his consent to the adoption and litigate the issue rather than arrange parenting time with J.

[34] This court finds that J. has been and continues to be prepared to comply with the Openness Agreement. As a result of the court’s order, that Agreement remains in place and governs P.'s access to the child.

Potential Disruption and Impact of Delay

[35] P. made it clear throughout his testimony that he was not interested in having specified or increased parenting time. His sole goal is to obtain full ‘custody’ of A. If the court agrees to allow him to withdraw his consent, he will bring a further Motion to Change, seeking to have A. placed in his full-time care. He has given minimal consideration to the disruption that such a change would cause to A. When asked directly whether he is concerned about the impact of such a drastic change, he testified that he felt that she would be ‘fine’ since she would be with biological family. When asked if he would agree to adding more specific terms to the Openness Agreement to avoid putting his daughter through protracted litigation, he responded that he would not agree and wanted to ‘stick with custody’.

[36] P. showed very little insight into A.’s needs, or the impact of either protracted litigation or a change in residence upon her. A. will shortly be seven years of age, triggering section 180(6) of the Act and therefore necessitating potential further inquiries and/or determinations.

Additional Concerns

[37] P. was asked several times to discuss A.’s best interests. He was asked by myself, by J.’s counsel, Mr. Balmer, and by Ms. Klodner to describe how withdrawing his consent was in A.’s best interests. He was given every opportunity to frame his request that he have ‘custody’ of A. in terms of her best interests, but he was simply unable to do so. When asked, he returned, time again, to his theme that he had been wronged and treated unfairly. He repeated that he felt that J.’s application was an ‘aggressive adoption’, that he wasn’t given a fair chance and that his criminal record was used against him. He testified that J. had acted to exclude him from A.’s life. He testified that as a biological parent he had to stand up for his rights.

[38] P.’s frustration with the process to date is understandable. He has not been able to develop a relationship with his daughter. To a large extent, unfortunately, that is his own doing. He had counsel for a considerable period of time, but never brought a motion for specified parenting time. He has rejected offers by J. for parenting time, choosing instead to seek redress in the courts. More importantly, however, regardless of my findings about why he has had so little parenting time, the court must ground its decision in A.’s best interests.

[39] Simply put, P. is unable to centre A.’s best interests. He wants to have her in his care because he feels it is his ‘right’ as a biological parent and he hasn’t been given a fair chance. His testimony and his submissions centred on how he had been wronged and he was unable or unwilling to consider the impact of his desired outcome on A. Other than asserting himself as a biological parent, P. was unable to give any examples of how A. would benefit from having a relationship with him.

Conclusion

[40] Having regard to the considerations as set out in the Act and the law compiled in S.M.L.L. v. J.K.M., 2016 ONSC 3198, the court concludes that it is in A.’s best interests that P. not be permitted to withdraw his consent. A. is deeply bonded with J. and J.’s children. She has extensive special needs which are being well addressed by J. P.’s goal is not merely to have a relationship with A., but to have her placed in his primary care, but he has little insight into either how to manage her complex needs, or how such a move would impact her. P. is not able to centre A.’s best interests.

[41] Making the decision easier in this case is the existence of the Openness Agreement. J. has committed to abiding by that Agreement, with the result that P. will still have an opportunity to develop a relationship with A.

[42] During closing submissions, the possibility of using a parenting application to assist J. and P. in communication was raised. After some discussion, an explanation of these applications to P. and hearing further submissions, J. and P. (and Ms. Klodner on behalf ofthe child) all consented to me making an order that the parties communicate via AppClose (or a different app if they both agree).

Orders

[43] P.’s motion to withdraw his consent is dismissed.

[44] The Openness Agreement between P. and J. shall remain unaffected by this decision.

[45] The parties shall use AppClose parenting app to communicate important information regarding A. and arrange for access pursuant to the Openness Agreement. All communications shall be respectful and child focussed.

[46] The Application is otherwise adjourned to address M.'s position.

Costs

[47] Mr. Balmer and P. made costs submissions. In light of the nature of this proceeding, I declined to order costs. Although P. was unsuccessful, I considered (a) the importance to him of maintaining some relationship with his daughter and (b) the impact of any costs order on the future ability of J. and P. to communicate in A.’s best interests, in coming to this conclusion.

Justice F. Wood
Released: July 11, 2025

[^1]: The Applicant has changed her surname since these proceedings began. A.’s surname is now the same as the Applicant’s maiden name, to which she reverted a few years ago.

[^2]: The operative legislation at the time was section 138 of the A. and Family Services Act, but the terms remain the same under the new Act.