J.C.S. v. C.B.R.S., 2011 ONCJ 191

WARNING The court hearing this matter directs that the following notice should be attached to the file: The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended, and has expressly prohibited the disclosure of any information about the identity of the children and parties in this case. This subsection and subsection 135(3) of the Courts of Justice Act , which deals with the consequences of failure to comply with subsection 135(2) , read as follows : 135.—

(2) Exception. — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) Disclosure of information.— Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information. Punishment for contempt is set out in subrules 31(5) and 31(6) of the Family Law Rules , O. Reg. 114/99, which state as follows:

(5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person, (

a) be imprisoned for any period and on any conditions that are just; (

b) pay a fine in any amount that is appropriate; (

c) pay an amount to a party as a penalty; (

d) do anything else that the court decides is appropriate; (

e) not do what the court forbids; (

f) pay costs in an amount decided by the court; and (

g) obey any other order.

(6) Writ of temporary seizure. — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property. Windsor Registry No. FA-2010-41 DATE: 2011·III·25 CITATION: J.C.S. v. C.B.R.S. , 2011 ONCJ 191 ONTARIO COURT OF JUSTICE IN THE MATTER OF an application by J.C.S. for the adoption of the child B.M.S. under subsection 146(2) of the Child and Family Services Act , R.S.O. 1990, c. C-11; BETWEEN: J.C.S., Applicant, — AND — C.B.R.S., Respondent.

Before Justice Barry M.

Tobin Endorsement inscribed on 25 March 2011 ADOPTION — Consent to adoption — Dispensing with consent — Grounds — Balancing what child will gain and lose as result ofadoption — Under court order made 9 years ago, parents of boy (now 11½ years old) enjoyed joint custody — Natural father continuedto have good relationship with son and mother even after she married about 4 years ago — Then, about 2 years ago, father-and-sonrelationship deteriorated and ended when, for reasons that court was unable to ascertain, boy remained silent and unresponsive whenengaged in conversations with father — There was no evidence that father had abandoned or abused son or failed to protect him in somemanner that would explain why boy would want to end relationship with father and even paternal grandparents — Apparently at boy’sinstigation, step-father applied to adopt boy and made motion to dispense with natural father’s consent — In review of what child wouldgain and lose by being adopted, court agreed that there were certain obvious benefits in legally becoming member of “new family” butboy’s current status within that “new family” was already positive and stable and hardly at any risk of disruption if adoption were denied— On other hand, what boy would lose by adoption would be substantial, including chance to re-establish relationship with father thathad ended for no obvious reason — For this and other reasons, court dismissed stepfather’s motion to dispense with father’s consent.

ADOPTION — Consent to adoption — Dispensing with consent — Grounds — Best interests of child — Child’s views and wishes —Under court order made 9 years ago, parents of boy (now 11½ years old) enjoyed joint custody — Natural father continued to have goodrelationship with son and mother even after she married about 4 years ago — Then, about 2 years ago, father-and-son relationshipdeteriorated and ended when, for reasons that court was unable to ascertain, boy remained silent and unresponsive when engaged inconversations with father — There was no evidence that father had abandoned or abused son or failed to protect him in some manner thatwould explain why boy would want to end relationship with father and even paternal grandparents — Apparently at boy’s instigation,step-father applied to adopt boy and made motion to dispense with natural father’s consent — Only evidence of child’s wishes camefrom stepfather’s affidavit and from “affidavit of execution and independent legal advice” from Office of Children’s Lawyer —Regrettably, court could not give much weight to child’s views without any evidence of level of boy’s maturity and experiences onwhich his opinion was based — Responsibility of severing relationship with his natural father should not rest on child’s shoulders at thisyoung age — For this and other reasons, court dismissed stepfather’s motion to dispense with father’s consent.

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 136(2), subsection 137(1), subsection 137(2) and section138 CASES CITED L. (Michael Allan) v. M. (Richard Daniel), , 137 A.C.W.S. (3d) 1155, [2005] O.J. No. 1060, [2005] O.T.C. 205, 2005Cars​well​Ont 1069 (Ont. Fam. Ct.). AUTHORS AND WORKS CITED Mamo, Alfred A. and Joanna E.R. Harris: “Children’s Evidence” in Evidence in Family Law (Aurora, Ont.: Canada Law Book, looseleafservice), edited by Harold Niman and Anita Volikis. C.

Owen Spettigue .................................................................... counsel for the applicant stepfather Respondent natural father, C.B.R.S. .................................................................... on his own behalf [1] JUSTICE B.M. TOBIN (endorsement):— Mr. J.C.S. has applied to adopt his stepson B.M.S. who was born on […]November 1999 and to dispense with the consent of the natural father, Mr. C.B.R.S. The adoption is opposed by the natural father. 1: FACTS [2] Ms. A.E.F. is the biological mother of the child.

She and the natural father were married on 20 September 1997. [3] By order of Justice Douglas W. Phillips dated 19 June 2002, the mother and natural father have joint custody of thechild. The child resides with mother and she has day-to-day care and control of him. The respondent’s access was ordered to take placeeach Monday, Wednesday and Friday from 4:30 p.m. until 7:30 p.m. and each Sunday from 10:00 a.m. to 7:00 p.m. The parties were atliberty to arrange further access as they could agree, in writing. [4] The parties were divorced by divorce judgment granted by Justice Joseph G. Quinn dated 11 June 2003.

The divorcejudgment contains no corollary relief regarding the child. [5] During the years 2002 to and including 2004, the natural father exercised access every Sunday. From 2004 untilChristmas 2009, access was exercised every other weekend. [6] The applicant married the mother on 23 June 2007. They reside together with the child, the applicant’s stepdaughter,age 8 years, and their son, age 3. The applicant has known the child since he was four years of age and has been contributing to his

support since 2005. [7] The natural father deposed that, until approximately two years ago: (

a) his access with the child went relatively well; (

b) the applicant (stepfather) and mother got along well with the father; and (

c) the father also had a good relationship with the child. [8] When the child was approximately ten years of age, in 2009, the relationship between father and son deteriorated. Thefather deposed that he obtained new employment that required him to travel mid-week extensively for his job. He was home on theweekends but the child had a number of weekend activities such that father’s access did not take place. He deposed that telephone callsto the mother and to the child were not returned. [9] In the fall of 2009, the child became quiet and unresponsive when engaged in conversations with the father.

The fatherhas not seen the child since 26 December 2009. [10] The applicant deposes that he and the mother have not discouraged the child from seeing or having a relationship with thefather. [11] The applicant deposes that the father has never shown an interest in the child’s schooling. He also deposes that the fatherwas made aware of the child’s swimming

schedule and other activities. [12] Although there have been periods of time when the father was in arrears of support, at this time he is current with thisobligation. [13] The applicant deposes that the child wants the adoption to take place. [14] The adoption record does contain the child’s consent to adoption which states: that the child, on 24 September 2010,spoke with a lawyer who: • has explained adoption to him; • explained what it means for the child to sign the consent to adoption; • told him what he could do if he wanted to change his mind about signing a consent; • told him about his rights and the rights of other persons with respect to the disclosure of adoption information; and • was going to witness his signing.

The lawyer who met with the child signed an “affidavit of execution and independent legal advice” stating that the lawyer was an agentof the Office of the Children’s Lawyer, had explained to the child the nature and effect of adoption under the law of Ontario, the natureand effect of the consent, the circumstances under which the consent could be withdrawn and his rights and the rights of other personswith respect to disclosure of adoption information.

After making the explanation, the child informed the lawyer that he wanted to signthe consent. 2: LAW [15] Subsection 137(2) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (“the Act”), provides that anorder for the adoption of a child who is less than 16 years of age shall not be made without the written consent of every parent.

Thenatural father is a parent within the meaning of the term as defined at subsection 137(1) of the Act. [16] The court may dispense with the consent required of the natural father where satisfied that it is in the best interests of thechild to do so and the person whose consent is required has received notice of the proposed adoption: See

section 138 of the Act. [17] The natural father has had notice of the proposed adoption. [18] Subsection 136(2) of the Act provides that, where a person is directed in an adoption matter to make an order ordetermination in the best interest of the child, the person shall take into consideration those of the following circumstances of the caseconsidered relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meetthose needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4.

The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secureplace as a member of a family. 6. The child’s relationships by blood or through an adoption order. 7. The importance of continuity in the child’s care and the possible effect on the child ofdisruption of that continuity. 8. The child’s views and wishes, if they can be reasonably ascertained. 9. The effects on the child of delay in the disposition of the case. 10. Any other relevant circumstance. [19] In Michael Allan L. v.

Richard Daniel M., , 137 A.C.W.S. (3d) 1155, [2005] O.J. No. 1060, [2005]O.T.C. 205, 2005 Cars​well​Ont 1069 (Ont. Fam. Ct.), Justice Cheryl J. Robertson stated at paragraph [5]:

[5] A review of the case law indicates the following principles should be applied: 1. the court must consider the best interests factors set out in subsection 136(2) of the Act ; 2. the court must balance what the child will gain and lose, with emphasis on what the child will gain; 3. the decision must take into account the child’s wishes, as best those can be ascertained; 4. the court must consider the child’s existing family reality. 3: DISCUSSION [ 20 ] The evidence discloses that the child’s physical, mental and emotional needs are being met in the home of his mother and stepfather. He is doing very well.

He appears to be well integrated into that family as a valued and loved member. There is no evidence that the child has special needs that require out-of-the-ordinary care or treatment. [ 21 ] There does not appear to be any change in the child’s cultural background. The child’s religious faith has been changed to that of the stepfather’s. The mother has also adopted that faith. [ 22 ] The child appears to have a positive relationship with his mother and stepfather. He did have a positive relationship with his father until approximately two years ago.

The evidence before me contains only speculation why that relationship may have ended. I am unable to make a finding, on the evidence before me, why this is so. The applicant deposed that the child has seen a child psychologist. There is no evidence from the child psychologist that might explain why the child does not want to have contact with the father. [ 23 ] The child did have a positive relationship with his paternal grandparents. This positive relationship ended as well. [ 24 ] There is no evidence that the child’s continuity of care would be disrupted if the adoption is not granted.

As stated above, he is well integrated in this new family. [ 25 ] I must also take into account the child’s wishes. The evidence that I have of the child’s wishes comes from the applicant and the consent form signed by the child. [ 26 ] The child is aware of his father and his extended family. There is no evidence that the father abandoned or abused the child or failed to protect him in some manner that would explain why a ten-year-old would want to cut off any relationship with them.

The applicant deposed that it was “solely [the child’s] decision to start this adoption.” [ 27 ] In the text Evidence in Family Law (Aurora, Ont.: Canada Law Book, looseleaf service, edited by Harold Niman and Anita Volikis) — at

chapter 4 “Children’s Evidence” written by Alfred A. Mamo and Joanna E.P. Harris) it states, beginning at page 4- 4, as follows: While a child’s views are not determinative of the child’s “best interest”, they are relevant, with the weight given to their views dependent upon such factors as the child’s age, maturity and motivation. As stated by Justice Harvey Brownstone in his seminal book Tug of War : As you might expect, the task of ascertaining a child’s wishes is fraught with difficulties.

For one thing, how do we know if the child has reached a sufficient level of maturity to understand the dynamics of the family breakdown and to evaluate both parents’ custody plans in terms of his own best interests? And, at page 4-10: If the court is to seriously consider the child’s views based on a parent’s affidavit, it is also important that information with respect to the child’s age, level of maturity and experiences on which the child’s opinion is based be before the court. [ 28 ] Because of the lack of information relating to these factors, I am unable to give great weight to his views and preferences.

The responsibility of severing his relationship with his natural father should not rest on the child’s shoulders at this young age. [ 29 ] When assessing the child’s best interests, I must also balance what he will gain and lose, with emphasis on what he will gain. The adoption would maintain the positive relationship the child has with the applicant and his “new” family. It will ensure his continuity of care. The adoption would allow the child to have the same last name as the applicant and his siblings.

This could be achieved through a change of name application as well. [ 30 ] What would be lost is substantial. He would lose the opportunity to re-establish a relationship with his father, which relationship has ended for no obvious reason. An adoption order, once made, is final.

Once the appeal period has passed, it is not subject to a review. [ 31 ] I am not able to find that, by denying the adoption, the child’s current stable and positive situation would be at risk or would result in disruption for the child. [ 32 ] As the applicant deposed that the impetus for the adoption comes from the child, I am confident that he and the mother will be able to explain to the child that he will continue to have a secure, special and cherished place in their family even if not adopted by the applicant.

4: DECISION [ 33 ] For these reasons, I am unable to grant the applicant’s request to dispense with the consent to adoption from the natural father, Mr. C.B.R.S. [ 34 ] I do not see how it is in the best interest of the child to dispense with the consent and allow the adoption based on the wishes of an 11-year-old in all the circumstances of this case.