Dispensing Consent in Adoption Orders

RC and TG v AC and BD, 2017 ONSC 6960

This case involves an Application to dispense with the biological parents’ consent to the adoption of a child, and sets out the applicable law and provides a thorough analysis on this issue.

BACKGROUND

AC — the child’s biological mother — had the child when she was 16 years old. BD — the child’s biological father — has had no involvement with the child since he was born.

RC is the child’s great uncle, and has been in a common law relationship with TG since 2012. TG has two children, to whom RC has been a parent. RC and TG are the Applicants.

After the child’s birth, AC had difficulties in caring for and raising the child. AC’s mother (the child’s grandmother) asked the Applicants to care for the child.

The child has lived with the Applicants since October 2014, and has a sibling relationship with the other children in the home. The Applicants’ family live in a “good neighborhood,” where the child has his own room.

In August 2015, RC and AC entered into an agreement, whereby the Applicants were to care for the child. The Agreement specifically provided that RC would have “full and complete custody, care and control” of the child.

Since the child has been in the Applicants’ care, AC has made no effort to see or contact the child.

In 2016, consent adoption documents were prepared. Although AC obtained legal advice, she did not sign the documents.

Since then, the Applicants have made several efforts to locate and contact AC. AC was personally served with the Application materials, but did not file responding materials.

RC too was served with Application materials and did not file responding materials.

ANALYSIS

The Ontario Superior Court of Justice relied on sections 136 (2), 137(2), and 138 of the Child and Family Services Act, and further referred to Justice Pazaratz’s decision in L (SML) v M (JK), 2016 ONSC 3198. Based on this, the Court noted the following:

  • The onus to satisfy the court that dispensing with parental consent is in the best interests of the child is on the party who seeks same.
  • The best interests of the child is a strict test.
  • The best interests test in the context of adoption is different than in the context of a custody and access proceeding, because an adoption order is final and irrevocable.
  • In assessing the best interest of a child, the court must weigh the advantages and disadvantages of dispensing with a parent’s consent to adoption. There must be “cogent” benefits to the child.
  • The court must determine whether dispensing with the parent’s consent would positively contribute to the child’s welfare.
  • The court’s decision must account for the child’s wishes, the child’s existing family reality, the stability and duration of the adoptive family, and the desire of the parent to maintain a relationship with the child.

Given the above principles, the court found that the child has no relationship with his biological parents, and further that he is content and thriving in the Applicants’ care and has a secure place in the Applicants’ family. The court further found that it would be detrimental to disrupt the child’s place in his current home, as he has been living with the Applicants since he was an infant.

Given the court’s findings, the court granted the Application to dispense with the parents’ consent to the adoption.

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 twelve years (2007 to 2018 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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