This is a truly unique judgment handed down by the Ontario Superior Court of Justice. We have commented about this matter before as the parties have been disputing about custody, access and their respective financial obligations arising from their separation…
G. (K.A.), Re, 2015 ONCJ 615
This case addresses the issue of whether the Ontario Court of Justice (OCJ) has jurisdiction of to hear and determine an adoption matter under section 146 of the Child and Family Services Act (CFSA), which pertains to the adoption of an adult child, if the adopting parent resides outside of Ontario.
The Applicant wished to adopt his step-daughter who was 48 years old. The Applicant and his step-daughter had fostered a relationship since she was 27 years old and both the she and her mother, the Applicant’s wife, consented to the adoption.
The Applicant sought to dispense with the biological father’s consent for the adoption as the biological father had been estranged from the daughter for many years.
The Applicant previously lived and worked in Ontario, however, he moved to Newfoundland and Labrador after retirement and before bringing his application for the adoption. Adoption of an Adult Step-Child The Applicant’s step-daughter continued to reside in Ontario.
The court refused to hear the application for this adoption because both parties were not residing in Ontario. The Applicant then brought an ex parte Motion before Justice Pugsle in Chambers on November 2, 2015.
THE APPLICANT’S MOTION
The Applicant sought an Order including the following terms:
- directing the court to accept the adoption application, and
- dispensing with the biological father’s consent.
The Applicant relied on the following legislation:
- section 146 of the CFSA, which permits adoption of adult children;
- section 150 of the CFSA, which permits an adoption application to be heard in the county of residence of the person being adopted; and
- Rule 5 of the Family Law Rules (Rules), which provides guidance regarding the jurisdiction in which one may commence an Application.
The Court dismissed the Motion and confirmed the refusal to accept the Adoption Application on the basis that the Court lacked jurisdiction to order the adoption.
REASONS FOR DECISION
Subsection 146(5) of the CFSA limits the court’s jurisdiction to make an adoption order by stating the following:
“The court shall not make an order under this section for the adoption of, or on the application of, a person who is not a resident of Ontario.”
The Court held that the residency requirement set out in the wording in subsection 146 (5) is mandatory and serves a sort of “gatekeeper function”, which must be complied with prior to applying of any provisions or Rules pertaining to choice of venue.
The Court further held that, although he did previously reside in Ontario and continued to visit Ontario, the Applicant did not currently reside in Ontario as was required by the statute.
As such, the court lacked jurisdiction to determine the adoption matter in this case, regardless of the merits of the adoption, because the Applicant did not meet the residency requirement as set out in section146(5) of the CFSA.