Dispensing with a Biological Parent’s Consent to Adoption: K. (A.) v. E. (A.).

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.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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