This decision, from the Ontario Court of Appeal, was released on December 12, 2011 and deals with an appeal from a trial decision of the Superior Court of Justice. The parties in this case, who were never married but rather…
In this case, the mother sought an order dispensing with the consent of her child’s biological father so that her current husband could adopt the child. This case reviews the principles under section 138 of the Child and Family Services Act.
At the time this case was heard, the child was 4-years-old, had never met her biological father and had always lived with her mother. The parents had been married only a short time, and the mother was now denying her ex-husband access. The mother was remarried with another child and another one on the way.
Because the child had never met her father, the mother argued it would be harmful to introduce the father to the child at this age. However, the reason her child did not have any relationship with the father was because she denied access. The mother could not rely on her obstruction of access as the reason to warrant the order sought.
The court asserted that many other factors must be considered in this situation. Namely, the test in determining whether parental consent should be dispensed with in adoption cases is: what is in the best interests of the child. An important principle to extract from this case is that step-parents cannot adopt a step-child in order to end a relationship between a child and their biological parent or to remove complications in relationships.
Justice Kane of the Superior Court of Justice in Ottawa explained: “There are adopted children who struggle to understand why their biological parent(s) are not part of their lives or why that parent has abandoned them. Many adoptive parents feel an obligation to not mislead and therefore reveal the adoption to the child. Children today of separated parents are not isolated or made to feel inferior because they live with one rather than two parents, or have a step-parent. This is a current and common reality in our society.”
Justice Kane concluded that an order dispensing with the biological father’s consent to adoption should be the exception, namely only where the best interests of the child clearly dictate that outcome. Accordingly, he dismissed the mother’s application, as she had not proven that there was a great benefit to the child in granting this order. He also found that the father demonstrated commitment to being a part of his child’s life through his continued attempts at trying to spend time with her, which was consistently denied by the mother.