R.S. v. B.W., 2011 ONCJ 185

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: 31.—

(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. Milton Registry No. A09/05/02 DATE: 2011·III·31 CITATION: R.S. v. B.W. , 2011 ONCJ 185 ONTARIO COURT OF JUSTICE BETWEEN: R.S., Applicant, — AND — B.W., Respondent. Before Justice Sheilagh M. O’Connell Heard on 4 February 2011

Reasons for Judgment released on 31 March 2011 STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 136(2), paragraph 136(2)¶1, paragraph 136(2)¶2,paragraph 136(2)¶5, paragraph 136(2)¶6, paragraph 136(2)¶7, paragraph 136(2)¶8, paragraph 136(2)¶9, subsection 137(2) and section138. Family Law Rules, O. Reg. 114/99 [as amended], Form 34. CASES CITED A.(J.-H.) v. L.(T.), , [2010] W.D.F.L. 1945, [2009] O.J. No. 5684, 2009 Cars​well​Ont 8360 (Ont. Fam. Ct.). C. (Meredith Ann) and D. (Carolyn Alexandra) v.

K. (Mark), 2009 ONCJ 18, 94 O.R. (3d) 756, 63 R.F.L. (6th) 438, [2009] O.J. No.368, 2009 Cars​well​Ont 428 (Ont. C.J.). C. (Pejo) v. C.-G. (Paulo Cesar), 2004 ONCJ 130, 132 A.C.W.S. (3d) 922, [2004] O.J. No. 3247, 2004 Cars​well​Ont 3212 (Ont. C.J.). L.(M.) and L.(G.) v. M.(S.) (1989), 13 A.C.W.S. (3d) 259, [1989] W.D.F.L. 486, [1989] O.J. No. 3, 1989 Cars​well​Ont 1385 (Ont.U.F.C.). 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.). L.(S.I.) v.

L.(L.J.) and L.(L.J.), , 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 Cars​well​Ont 299(Ont. U.F.C.). Re Pennington (1980), (NS SC), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 Cars​well​NS 148(N.S. Co. Ct.). Smith v. Harvey (1975), (ON CA), 19 R.F.L. 367 at 368, [1974] O.J. No. 1291, 1974 Cars​well​Ont 213 (Ont. Co. Ct.),affirmed at (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 Cars​well​Ont 140 (Ont. C.A.). Theodore G.

Giesbrecht and Karin Maiterth .............................................. counsel for the applicant Respondent natural father, B.W. .......................................................................... on his own behalf JUSTICE S.M. O’CONNELL:— 1: INTRODUCTION [1] This is a motion by the stepfather of the children for an order dispensing with the consent of the children’s biologicalfather to the stepfather’s adoption of the children. The children’s biological father does not consent to the proposed adoption by thechildren’s stepfather.

The children’s biological mother, who is married to the applicant stepfather, supports the stepfather’s motion andapplication for adoption. In his response to the stepfather’s motion, the father has also brought a cross-motion for access to the children. 2: ISSUE [2] Should the court dispense with the consent of the biological father to enable the stepfather to adopt the two children? 3:

SUMMARY OF THE EVIDENCE 3.1: The Mother’s Evidence: [3] The children, E.W. (born on […] May 2000) and R.W. (born on […] August 2003) are now 10 and 7 years of age. Thechildren’s mother, (“Ms. K.S.”) and the children’s father (“Mr. B.W.”) became involved when they were teenagers. Ms. K.S. was 18years old and Mr. B.W. was 19 years old at the time of their first child’s birth. The parties married in August of 2000 after Ms. K.S.became pregnant. The mother deposes in her evidence that the father demanded that she should have an abortion. However, afterdiscussion, they agreed to get married and try to have a family.

They separated approximately two and one-half years later, in 2003,when the mother was two months pregnant with their second child, R.W. [4] The mother deposes that, after E.W.’s birth, the father was, “nothing close to being a good father.” She deposes that thefather was reckless, violent and irresponsible and completely disinterested in parenting.

[ 5 ] The mother states that, throughout their relationship, the father was abusing drugs and alcohol, including marijuana, LSD and ecstasy. She states that the father had a criminal record that included possession of drugs and that he was involved in trafficking drugs while they were in high school and during their relationship. According to the mother, the father had been in trouble with the police on many occasions and she attended criminal court with him on at least three occasions.

The mother deposes that, after they married, the father continued to abuse drugs and alcohol and would steal money from her friends, and even E.W.’s piggy bank to support his substance abuse. [ 6 ] The mother further deposes that the father was unable to maintain employment and they were forced to move frequently throughout the marriage. The young couple initially lived with the father’s parents before moving to their own apartment. They lost the apartment after the father lost his job, so they moved back in with the father’s parents.

They were then evicted from the paternal grandparents’ home because of the father’s alcohol and drug abuse and his “partying lifestyle.” They then moved to another family friend’s home from where they were also eventually evicted, again because of the father’s substance abuse and behaviour. [ 7 ] The mother deposes that the father was rarely present as a father and a husband during their short relationship. During the rare times that he was involved in parenting, he placed their oldest child at risk.

The mother cites one example when she had left E.W. with the father because she was working part-time in an after-school program. When she returned home, she found the father passed out from drugs and alcohol and E.W. alone on the floor crying. E.W. was under two years old at the time. [ 8 ] According to the mother, the parties finally separated in early 2003 when she was two months pregnant with R.W., their second child. At that time, the father left the family home.

She states that, after the separation, the father would sporadically return to their home under the influence of drugs and ask her for money. [ 9 ] In late 2003, when R.W. was three months old, the father came to the mother’s apartment under false pretences with his mother and entered her apartment. The mother deposes that she thought the father and his mother were attempting to take the children away.

The maternal grandfather called the police, who arrived and removed the father from the apartment. [ 10 ] Shortly after that incident, the mother became involved with victim services and brought an application for custody and a restraining order. The father was aware of but did not actively participate in the family court proceedings and, according to the mother, did not show any interest in pursuing access to the children.

The mother deposes that the father told the family court judge that the mother could have custody, and that he did not want access, nor did he want to pay child support. [ 11 ] On 5 January 2004, the Honourable Justice Walter T. Stayshyn made a final court order granting the mother custody of both children.

He further ordered no access between the father and the children and made a final restraining order against the father, restraining him from molesting, annoying or harassing the mother and the two children, and from coming within 200 metres of the matrimonial home. [ 12 ] Since that order, the father has had no contact with the children. The last time that the father saw either child was in the late summer of 2003.

The father has paid no child support since the separation. [ 13 ] The mother’s evidence is corroborated by the evidence of her father, her mother, her sister, her grandmother, and significantly, the children’s paternal grandfather (father of Mr. B.W.), all of whom have filed affidavits in these proceedings in support of the applicant’s motion. According to the paternal grandfather, his son Mr.

B.W. “has not shown any responsibility in the matter respecting his children and he has, currently, serious issues with alcohol.” [ 14 ] The mother and stepfather have been involved since the summer of 2005 and were married in July of 2006. In addition to E.W. and R.W., they have two other children together and they have provided all four of their children with a stable and loving home. For almost six years now, the stepfather has been present for all of the children’s milestones in life and he is actively involved in their daily lives.

The children are closely bonded to him. 3.2: The Father’s Evidence: [ 15 ] The father denies many of the allegations made by the mother. The father denies abusing drugs and alcohol during the marriage, denies being abusive and violent and denies trafficking drugs during or before their marriage. He further denies “passing out drunk” when he was caring for E.W. [ 16 ] The father states that he and the mother were both very young and immature when the mother became pregnant with E.W.

The father deposes in his evidence that he “requested that she have an abortion because I felt we were too young to have children, her being 18 and myself 19.” However, to the father’s credit, he married Ms. K.S. and started a family with her. [ 17 ] The father candidly deposes in his materials that “Admittedly, I did foolish things when I was young.” He admits to “immature and reckless behaviour” and he admits to “casual drinking” during the marriage, although categorically denies binge drinking or drinking to the point of passing out.

During the time that the mother and father were dating, he admits to using marijuana casually and experimenting with ecstasy, but nothing else. As a youth, he has been convicted for possession of marijuana and for theft, but not trafficking. [ 18 ] The father deposes that supporting a family at such a very young age was difficult for him. He denies being unable to hold down a job during that period and states that he was steadily employed as a landscaper, but he felt overwhelmed by the stress of supporting a family at a very young age.

The father does not dispute that he left the family home when the mother was two months pregnant with their second child. [ 19 ] The father is now 30 years old and he states that he has significantly matured over the years and has become more responsible. He has not been in conflict with the law for at least seven years and his last criminal conviction was several years ago.

[ 20 ] The father states that he is now steadily employed during the winter season (from December to March) as a “roughneck” in Alberta with a number of oil companies. He has been working in Alberta on the oil rigs for the past five years. During the summer season, he works in Ontario (from March to December) in the landscaping industry and he has been steadily employed with the same landscaping companies for the past five years.

The father brought a number of tax returns with him to court on the day of the motion confirming his employment and the fact that he has earned a good income over the past several years while splitting his time between Alberta and Ontario. However, the father advised in oral submissions that he is planning to return to school in September of this year to upgrade his education and skills to further enhance his employment opportunities. [ 21 ] The father categorically denies abusing drugs or alcohol at this time in his life. He states the nature of his work would make this very dangerous.

He operates heavy machinery both as a landscaper and as a roughneck. His immediate supervisor is on the job site. He states that the affidavit of Ms. K.S.’s sister, which claims she recently saw him smoking a marijuana joint while driving a “Bobcat”, is patently false. [ 22 ] The father submits that the affidavit filed in support of this application by his own father is also false. He states that it was prepared for the stepfather so that the paternal grandfather could continue to have a relationship with his grandchildren after the adoption.

The father also states that he does not have a relationship with his own father and that he has very little contact with him. [ 23 ] The father’s evidence regarding why he has not seen his children for more than seven years is confusing and contradictory. The father claims that he did not “abandon” his children, but that they were “kidnapped” and “taken away” from him. The father admitted to being aware of the court proceedings initiated by the mother in 2003 and initially participating in these proceedings.

He does not dispute that he voluntarily gave up his rights to custody and access during the court proceedings. [ 24 ] The father also states that he did not do anything to change the access order for the past seven years because he was afraid of Ms. K.S.’s father, the maternal grandfather, yet he does not state any reasons for this fear.

He further states that, at the time of the court proceedings, he did not fully understand what was going on and that he did not understand what a “no access order” meant until approximately five or six years ago. [ 25 ] The father also candidly admitted during oral argument that he should have taken steps to pursue access to his children much sooner and that failing to do anything for the past seven years was “selfish”. He submits that, if the applicant succeeds on this motion, then his children are going to lose a great opportunity to know their biological father.

He further submits that, if he does not see his children before they are 15 years old, then they are going to hate him and he does not want the children to hate their biological father. [ 26 ] It is apparent from the father’s sworn materials and his oral submissions that the father deeply regrets not taking any action sooner to establish a relationship with his children.

In his own words, he has made an “irreversible mistake”. 4: DISCUSSION OF THE EVIDENCE [ 27 ] I do not accept the father’s evidence that he has not been able to locate his children during the past seven years and that they were “kidnapped”, or that he did not do anything for the past seven years out of “fear”. The mother properly brought a court application to determine the issues of custody and access in 2003. The father was served with these initial court proceedings and he participated in these proceedings.

He gave up his rights to custody and access and advised the court at that time that he did not wish to pay child support. Further, the father admits to having contact and communication with the mother’s family over the years and certainly has attended at the maternal grandparents’ home on more than one occasion over the past seven years and has met with the mother’s sister.

On one occasion, the mother’s sister apparently showed him photographs of the children, according to his evidence. [ 28 ] The father did not bring a court motion for access to his children until January of 2011, seven years after the final order of Justice Stayshyn.

This motion was brought only in response to the stepfather’s motion to dispense with the father’s consent to the proposed adoption. [ 29 ] I find that the father made no efforts through the courts to address his access rights to his children until he was served with these proceedings and that he has demonstrated very little, if no effort, to establish a relationship with either of his children until now. [ 30 ] Despite his claims, in his heart, the father knows this to be true. The father admits that he has made an “irreversible mistake” and should have done more sooner to establish a relationship with his sons.

In his evidence he states, “I made the biggest mistake I ever made by not doing more to find them. . . . I have made an irreversible mistake and I am praying for a chance to repair it. The chance to know, take care of and love my sons.” In his oral submissions during argument, the father candidly conceded that “doing something sooner would have been a lot better” for his children. 5: ANALYSIS [ 31 ] Pursuant to subsection 137(2) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, the written consent of every parent is required before an order for adoption can be made.

Section 138 provides: 138. Dispensing with consent.— The court may dispense with a consent required under

section 137 for the adoption of a child, except the consent of the child or of a Director, where the court is satisfied that, (

a) it is in the child’s best interests to do so; and (

b) the person whose consent is required has received notice of the proposed adoption and of the application to dispense with consent, or a reasonable effort to give the notice has been made. [ 32 ] In looking at the best interests of the child, the court is directed to the criteria set out in subsection 136(2) of the Act that

[32] In looking at the best interests of the child, the court is directed to the criteria set out in subsection 136(2) of the Act thatmay be relevant to the circumstances of the case. The test is a strict one and the onus rests on the applicant to show that the dispensingof consent and subsequent adoption is in the child’s best interests.

Section 136 of the Act sets out the criteria for the court to consider inmaking this determination:

(2) Best interests of child.— Where a person is directed in this Part to make an order or determinationin the best interests of a child, the person shall take into consideration those of the followingcircumstances of the case that he or she considers 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. [33] The best interests test in the context of an adoption proceeding is not the same best interests test in the context of acustody and access proceedings for obvious reasons. A custody or access order can always be reviewed upon a material change incircumstances. An adoption order is final and irrevocable. It may not be questioned or reviewed in any court. As Justice Marion L.Cohen stated in Meredith Ann D. and Carolyn Alexandra D. v. Mark K., 2009 ONCJ 18, 94 O.R. (3d) 756, 63 R.F.L. (6th) 438, [2009]O.J. No. 368, 2009 Cars​well​Ont 428 (Ont. C.J.): [70] . . .

For all purposes of law, as of the date of the making of adoption order, the adopted childbecomes the child of the adoptive parent, the adopted child ceases to be the child of the parent who washis or her parent before the adoption order was made, and ceases to be the relative of the formerparent’s relatives. For this reasons, adoption has been characterized in many cases as the “statutoryguillotine of the biological relationship”. Adoption results in the final and irrevocable severance of thebiological bond between parent and child. [34] 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 set out the following four principles in considering thebest interests test under

section 138 of the Act: 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 willgain; 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. [35] It is no longer necessary to find parental misconduct to dispense with the natural parent’s consent to adoption. Theexclusive focus is the child’s best interest, not the rights of the natural parent.

Parental misconduct or abandonment is only relevant ifthe non-consenting parent continues to engage in conduct that is not beneficial or even harmful to the child: see S.I.L. v. L.J.L. and L.J.L.,, 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 Cars​well​Ont 299 (Ont. U.F.C.). See also M.L. andG.L. v. S.M. 13 A.C.W.S. (3d) 259, [1989] W.D.F.L. 486, [1989] O.J. No. 3, 1989 Cars​well​Ont 1385 (Ont. U.F.C.). [36] In cases of stepparent adoptions, the court should be mindful of improper motive.

The parent and stepparent cannot usethe adoption process to terminate the relationship between the child and the natural father because this relationship creates difficulties forthe mother and stepfather; see Smith v. Harvey (1975), (ON CA), 19 R.F.L. 367 at 368, [1974] O.J. No. 1291, 1974Cars​well​Ont 213 (Ont. Co. Ct.), affirmed at (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 Cars​well​Ont 140 (Ont. C.A.). [37] Furthermore, the court should consider whether a stepparent application to adopt is premature.

If the application by thestepparent is made in the early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent’srelationship with a child before assessing the stability and permanence of the relationship between the stepparent and the other parent: Re Pennington (1980), (NS SC), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 Cars​well​NS 148(N.S. Co.

Ct.). [38] Where the natural father has shown a genuine interest in the children, even though separated, and the children have anemotional attachment to the natural father, courts have been very reluctant to dispense with the father’s consent. Where the relationshipis non-existent, courts are more persuaded to dispense with the natural parent’s consent. See Smith v. Harvey, supra. [39] Within this legal context, I now consider each of the criteria under subsection 136(2) of the Act which is relevant to thiscase. [40] Paragraph 1 of subsection 136(2): 1.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meetthose needs.

The evidence filed by the stepfather demonstrates that he is a caring and loving father to E.W. and R.W. He has attended most of theirdoctor and dentist appointments, as well as R.W.’s surgeries when he had his tonsils removed and ear tubes inserted. He has taughtE.W. to ride a bicycle and to play chess. He is teaching R.W. to ride a two-wheeler this year. He plays with the children and helps thechildren with their homework and reading on a daily basis. He has attended every parent-and-teacher meeting for both children since2006. He pulled E.W’s first loose baby tooth in 2006 and did the same for R.W. in 2011.

He taught R.W. to hit a baseball when he was4 years old. He provides financial security for the children. Both children call him “Daddy” or “Dad.” The stepfather and the motherhave a strong and stable relationship. All of the evidence presented by the applicant by way of affidavits sworn by him, the mother of the children and the extended familymembers attest to the fact that E.W. and R.W. are healthy and happy children. All of the affiants note that the mother and stepfatherhave done an excellent job of meeting the children’s physical, mental and emotional needs in an exemplary manner.

There is noevidence to the contrary and the father does not dispute this. [41] Paragraph 2 of subsection 136(2): 2. The child’s physical, mental and emotional level of development. The children are currently almost 11 and 8 years old respectively. There is no evidence that their development has been anything otherthan normal or that they have any developmental difficulties. Their development has been supported entirely by the mother and theapplicant. [42] Paragraph 5 of subsection 136(2): 5.

The importance for the child’s development of a positive relationship with a parent and a secureplace as a member of a family. It is under this paragraph that the court must assess whether it is possible that the children could develop a positive relationship with theirfather and weigh the potential benefit of this against the importance of a secure place as members of a family for the children. [43] There is no question that the current family constellation is the only family that these children know and adoption willprovide them with greater security.

There are clear benefits that come with adoption that are not available in a custodial arrangement. As Justice Margaret A. McSorley stated in Pejo C. v. Paulo Cesar C.-G., 2004 ONCJ 130, 132 A.C.W.S. (3d) 922, [2004] O.J. No.3247, 2004 Cars​well​Ont 3212 (Ont. C.J.): [36] . . . adoption brings with it similarity in family name, security at home in a family unit,benefit of stability in inheritance situation or upon the death of a biological parent, confirmation of thereality of who is doing the parenting and reaffirmation of sibling relationships.

Weighing theseadvantages against unknown, future and unlikely benefits from the biological father, this factor must begiven great weight in these circumstances. [44] In the case of J.-H.A. v. T.L., , [2010] W.D.F.L. 1945, [2009] O.J. No. 5684, 2009 Cars​well​Ont 8360(Ont. Fam. Ct.), Justice Robert J. Smith stated the following in assessing what the child would gain and lose by the adoption in a casewhere the child did not know her biological father: [20] When assessing the child’s best interest, I must consider what would be gained as againstwhat would be lost by the adoption.

In this case, the gain for the child would be substantial, namelypreserving a positive relationship with the applicant, and his brother, preserving a secure place in hiscurrent family, ensuring continuity of his care, avoiding the disruption and upset at having to develop anew relationship with his biological father; and his views would be respected by allowing him to be justlike his younger brother and be a part of the A. family. [21] What would be lost by the child in this case is not substantial because, while it is important todevelop a relationship with both natural parents, he does not have any current relationship with hisnatural father who he has not seen for the last five years and who has not supported him or beeninvolved with any activities with him for the past five years and had minimal involvement since hisbirth. [22] The child’s existing family reality is that he enjoys a secure place in his current family whichis stable and supportive and meets the child's needs.

Denying the adoption would put the child's currentstable and positive situation at risk and may result in disruption for the child. [45] The father submits that he loves and misses the children and that he wants to play a role in their lives. However, thefather also states that he splits his time between Alberta and Ontario and that he is seasonally employed in Alberta for several months ofeach year. It is very unclear from the evidence how the father would develop a role at this point in the children’s lives, seven years later.

The possibility of a future reconciliation between the children and their biological father is very speculative and impossible to predict atthis time. The children’s stability and permanence in their current family and the benefits of adoption far outweigh this uncertainpossibility. [46] Paragraph 6 of subsection 136(2): 6. The child’s relationships by blood or through an adoption order. The children are related by blood to their mother and father. However, that is the extent of their relationship with the respondent father. Their mother and the applicant are the only parental figures they know.

An adoption order will clearly strengthen that relationship. [47] Paragraph 7 of subsection 136(2):

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. The children have had the continuous care of their mother since birth and the continuous care of their mother and stepfather since 2005. They have known no other home or other constant caregivers. The possible re-introduction of a father whom they do not know at this stage in their lives would be very disruptive and potentially traumatic for the children and this cannot be in the children’s best interests. [ 48 ] Paragraph 8 of subsection 136(2) directs the court to consider: 8.

The child’s views and wishes, if they can be reasonably ascertained. Both children have had separate and independent counsel through the Office of the Children’s Lawyer in these proceedings. Their counsel explained the consequences of an adoption order to each child. Both children have clearly expressed through their counsel that they wish to be adopted by their stepfather. A Form 34 (Child’s Consent to Adoption) [under the Family Law Rules , O.

Reg. 114/99, as amended] was executed by both children in the presence of their counsel and filed in support of this application. [ 49 ] Paragraph 9 of subsection 136(2) directs the court to consider: 9. The effects on the child of delay in the disposition of the case. This matter has been ongoing since March of 2010, more than 12 months.

The children are aware of the court proceedings and are anxious for the proceedings to be resolved. 6: CONCLUSION AND ORDER [ 50 ] The undisputed evidence is that the father has not seen either of the children for more than seven years and he has never supported them financially or otherwise. He has never known R.W., his second child, and he last saw E.W. when he was a toddler. E.W. is now almost eleven years old and R.W. is almost 8 years old. The children do not have a relationship with their biological father, or any recollection of him because of the father’s own inaction.

He is a stranger to them. [ 51 ] The children have a very close and loving relationship with their stepfather. He is the only father whom the children have known. He has parented both children for more than five years. [ 52 ] In weighing the gains and losses to the children, it is clear that the children will gain the permanence of a stable family and the preservation of their relationship with the applicant.

If the order requested is granted, E.W. and R.W. will have the same surname as their mother, stepfather and half-siblings; they will have a secure place in a secure family unit and the order will confirm their existing family reality. The children themselves desire this. The children will lose nothing from a relationship with their biological father that does not exist.

The possibility of developing that relationship in the future, while important, does not outweigh the substantial gains to these children by being adopted by the applicant. [ 53 ] On the basis of the circumstances of this case and the application of law, I find that it is in the children’s best interests to dispense with the biological father’s consent to the proposed adoption of the children by the stepfather and I make that order. [ 54 ] I recognise that this order will be very difficult for the biological father.

It is apparent that the father has made some efforts to change his life and to become a more mature and responsible person. However, my focus must be on the children’s best interests, not the father’s interests. [ 55 ] As a result of my order, the father’s cross-motion for access is dismissed. [ 56 ] There will be no order for costs.