A.C. v. V.A., 2012 ONCJ 7

Windsor Court File No.: FA-2011-23 DATE: 2012·I·05 CITATION: A.C. v. V.A. , 2012 ONCJ 7 ONTARIO COURT OF JUSTICE BETWEEN: A.C., Applicant — AND — V.A., Respondent Before Justice Douglas W. Phillips Heard on 7 November 2011 and 28 December 2011 Reasons for Judgment Released on 5 January 2012 Daniel S. Ableser ........................................................................................ for the applicant A.C. No appearance by or on behalf of the respondent, who had never been served with notice JUSTICE D.W.

PHILLIPS: RULING ON MOTIONS 1: INTRODUCTION [ 1 ] This ruling addresses a motion seeking two specific heads of relief within a pending adoption application. [1] [ 2 ] The motion seeks to specific orders: 1. An order dispensing with the consent of the respondent to the applicant’s adoption of [Y.C.] born […], 1999; 2. An order dispensing with the consent of [Y.C.] to his adoption by the applicant.” [2] [ 3 ] The applicant has initiated an adoption application. [3] [ 4 ] The motion was subject of argument and submissions on December 28, 2011. 2: BACKGROUND INFORMATION [ 5 ] The applicant, Mr.

A.C., seeks the adoption of Y.C., born on […], 1999. [ 6 ] The applicant was born on […], 1954. [4] [ 7 ] The applicant was born in Russia. He immigrated to the United States in 1991. In 2008, he immigrated to Canada. His immigration status in Canada is that of a landed immigrant. [5] [ 8 ] The subject child’s mother is Ms. E.C. [6] [ 9 ] The applicant and his married spouse met in 1999. They were married on June 27, 2002.

Together in consequence of their marriage, they have two children born namely twins E. and K., born on […], 2004. [7] [ 10 ] The applicant and his married spouse, the child’s mother, reside at Windsor, Ontario. [ 11 ] The applicant is currently employed as the cantor at Temple Bethel in Flint, Michigan. He commutes to work from

Windsor. He has an annual income from that employment of approximately $40,000. In the past, he was employed as the music director of the Michigan Catholic Conference. In consequence of that, he has a pension of some $10,000 annually. [8] [ 12 ] The applicant and his married spouse have the ability to meet the subject child’s needs and have done so since the child’s infancy. [9] [ 13 ] The applicant’s married spouse, the child’s mother is a Canadian citizen having immigrated to Canada from Russia in 2003. [10] 3: THE CHILD’S BIRTH MOTHER [ 14 ] The child’s birth father is Mr. V.A. [11] [ 15 ] Ms.

E.C., the child’s mother, and Mr. V.A. were married to one another. [12] 4: TERMINATION OF THE BIRTH FATHER’S “PARENTAL RIGHTS” [ 16 ] The adoption applicant filed evidence that would suggest that the birth father, the named respondent, Mr.

V.A., has either consented to the adoption of his child or had his parental rights terminated. [13] [ 17 ] A closer scrutiny of this issue is required relative to the documents provided. [ 18 ] Based on the evidence offered by the adoption applicant, it would appear that the child’s birth father gave what purports to be an adoption consent on November 22, 2002. [14] This document was dated November 22, 2002, some several months after the marriage of the adoption applicant and the subject child’s mother June 27, 2002. [ 19 ] Despite having that document, it appears that the adoption applicant’s married spouse Ms.

E.C. initiated court proceedings in Russia. [15] 5: ANOMALIES IN THE CONTENT OF DOCUMENTS FILED WITHIN THE ADOPTION APPLICATION AND MOTION [16] [ 20 ] After a review of the content of materials filed as it pertained to both the adoption application and the motion, the court requested the attendance of counsel on behalf of the adoption applicant. The adoption applicant’s counsel of record, Warren S. Fullerton, chose not to attend at court on November 7, 2011 at 2:00 in the afternoon but instead delegated the task to his student-at-law Ms. Alice Helen Van Deven. [17] She attended at court on November 7, 2011.

At that time the court made inquiries as to whether on the behalf of Mr. Fullerton she was “fully instructed”. She stipulated that she acted with full instructions. The court conducted a review of the content of documents filed. [ 21 ] In the first of two affidavits of parentage filed by the adoption applicant’s married spouse Ms. E.C., the birth mother of the subject child, she identified two dates of birth with respect to the birth of her own son. [18] A second affidavit of parentage of the adoption applicant’s married spouse Ms.

E.C., the date of birth appears now to be consistently stated as […], 1999. [19] [ 22 ] Within the title of proceedings having to do with the adoption application, the child’s birth father is identified as Mr.

V.A. [20] [ 23 ] However reviewing documents that were filed in court proceedings in Russia, it would appear that birth father’s correct name is [V.Y.A.]. [21] [ 24 ] The adoption applicant has suggested that the respondent’s location is unknown. [22] [ 25 ] However, documents relied upon by the adoption applicant and filed within the adoption proceeding, identify an address for the respondent birth father. [23] [ 26 ] In an effort to dispense with adoption consent, it is patently obvious that neither the adoption applicant or the adoption applicant’s married spouse have made any genuine efforts to locate the whereabouts of the respondent. [24] [ 27 ] In respect of this consideration, it is noteworthy that the affidavit filed by the adoption applicant’s married spouse Ms.

E.C. provides no assistance as to the current whereabouts of the respondent birth father. [25] [ 28 ] The information provided by the adoption applicant as to the location of the respondent is equally unhelpful. [26] [ 29 ] No effort apparently has been made to do various internet searches which are available to determine the location of the respondent birth father. No information has been forthcoming from the adoption applicant’s married spouse Ms. E.C. as to family of the birth family who might be available for purposes of substituted service.

[30] Finally it is noteworthy that the respondent birth father did participate (though not by way of an appearance) in thedecision of Kuibyshevskiy Federal Court of the Centrlniy District of Saint Petersburg in its assessment and termination of his parentalrights in 2003.[27] [31] As indicated before, there appear to be several instances in the documentation filed where the child’s date of birth isidentified differently.[28] Subsequent filings include a birth certificate of the child that would confirm the true date of birth of thesubject child as […], 1999.[29] [32] Before November 7, 2011, when a file review was done of the filings provided to that date, a review of the documentssuggested that the child’s correct name was “Y.C.”.[30] [33] However it is clear based on the birth certificate filed by the adoption applicant that the child’s full name [Y.V.C.].[31] [34] When the matter of the child’s name was drawn to the attention of counsel for the adoption applicant, the counselindicated that the birth mother had arranged for the child’s change of name by way of an application in 2002.[32] Further filingsconfirmed that assertion.[33] [35] The Russian court determination relied upon by the adoption applicant, which terminated parental rights with respect tothe child’s birth parent, also has some anomalies.[34] [36] The determination by the Russian court authority having to do with termination of parental rights made an appealavailable.

There was no affidavit material before the court to certify that no such appeal was ever initiated.[35] [37] Though the adoption applicant attested to the fact that the child’s mother and he were married,[36] there was no marriagecertificate offered. [38] In an initial review of the adoption file prior to November 7, 2011, nowhere in the supporting affidavit material filed bythe adoption applicant, was there any information with respect to the adoption applicant and the presence or absence of a record ofcriminal convictions or involvement with any children’s aid society.[37] This was drawn to the attention of the student-at-law Ms.

AliceHelen Van Deven, in attendance in court on behalf of counsel of record for the adoption applicant November 7, 2011. The importance ofthese omissions was drawn home to the attention of the adoption applicant’s agent, in consequences of the finality attending thecompletion of an adoption proceeding.[38] Subsequently documentation was filed with respect to the adoption applicant and children’said society involvement.[39] 6: DISPENSING WITH THE REQUIRED ADOPTIONCONSENT OF THE RESPONDENT [39] The motion to dispense with service of the birth father has not been served on the birth father.

This is a requirement of thestatute. There is insufficient evidence to convince this court that the birth father could not be served. No genuine efforts to serve thebirth father have been engaged.

If the motion to dispense has not been served, dispensing with the birth father’s consent is not anavailable remedy at this juncture. [40] Submissions by moving party’s counsel suggested that the court might rely upon the Russian declaration and theprovisions of subsection 137(13) of the Act. [41] To do so would require the Ontario court to recognize such foreign declaration. [42] Ontario law has no equivalent to such declarations, although they are common to civil law jurisdictions, where theygenerally go by the name of “emancipation” decrees. They are based on Roman civil law and are the opposite of “adoption”.

UnderRoman law, adoptio was one of several avenues by which a person could legally become part of the familia and would henceforth besubject to the absolute authority of the paterfamilias. The legal process of “emancipatio” dissolved the bond between the paterfamiliasand the dependant who thereafter became sui juris. See 1 Just. Inst. 12:6.. [43] The common law of neither England nor of Ontario recognizes “adoption” or “emancipation”. In fact, the common law ispositively hostile to such notions.

The very concept of adoption posed a threat to the feudal traditions of succession by legitimate bloodline and was vigorously resisted by the feudal aristocracy and by common law judges. In the early 20th century, apologists for thecommon law clothed themselves with high moral principle, one focussed about the sanctity of parental duties — namely that the rightsand duties of parentage could never be sold, given away or otherwise assigned to others and any attempt to do so should be regarded asagainst public policy. See Farrell v. Witton (1893), 3 Terr.

L.R. 232, 1893 Cars​well​NWT 17 (N.W.T.S.C.); Re Quai Shing (1897), 6B.C.R. 86, [1898] B.C.J. No. 7, 1898 Cars​well​BC 23 (B.C.S.C., in banco); Blayborough v. Bradford Gas Co. (1909), 18 O.L.R. 243, 13O.W.R. 573, [1909] O.J. No. 192, 1909 Cars​well​Ont 243 (Ont. K.B.); Re Davis (1909), 18 O.L.R. 384, 13 O.W.R 939, [1909] O.J. No.43, 1909 Cars​well​Ont 243 (Ont. K.B.); Re Porter (1910), 15 B.C.R. 454, 15 W.L.R. 228, [1910] B.C.J. No. 98, 1910 Cars​well​BC 151(B.C.S.C.); Fidelity Trust Co. v. Buchner (1912), (ON SC), 26 O.L.R. 367, 22 O.W.R. 72, 3 O.W.N. 1208, 5 D.L.R.282, [1912] O.J.

No. 135, 1912 Cars​well​Ont 270 (Ont. K.B.); Trainor v. Toronto General Trusts Corp. (1953), (MBCA), 8 W.W.R. (N.S.) 465, [1953] 3 D.L.R. 278, [1953] M.J. No. 57, 1953 Cars​well​Man 50 (Man. C.A.). Adoption exists in Ontarioonly by as a creature of statute law. [44] It follows that neither the English common law nor Ontario law recognizes or allows a court to issue a decree ofemancipation, although it has been legislated it into existence in some American states where it is sometimes colourfully described as a“divorce” between parent and child. Quebec has a form of emancipation for minors.

See articles 167-176 of the Civil Code of Québec,S.Q. 1991, c. 64, as amended.

[ 45 ] From an examination of some of the above cases, it would appear that, at a time before the province had adoption laws, the courts refused to recognize adoptions completed abroad by people who subsequently moved into Ontario or to recognize instruments drawn up abroad that purported to confer a benefit upon an adopted beneficiary now resident in Ontario.

By analogy, an Ontario court should not (even today) recognize a foreign decree of emancipation [40] . [ 46 ] Accordingly, the Court does not consider this a circumstance where the provisions of subsection 137(13) of the Act may apply. [ 47 ] Having failed at this point to dispense with the obligation to serve the birth father with the motion to dispense with his required adoption consent, and rejected application of s. 137(13) of the Act, the issue of the birth father’s consent remains outstanding. 7: ADOPTION CONSENT OF THE ADOPTION APPLICANT’S SPOUSE [ 48 ] The consent of the child’s birth mother in a stepparent adoption is required. [41] [ 49 ] Ms.

E.C., the adoption applicant’s spouse and the child’s birth mother, filed the required Form 34I, Parent’s Consent to Adoption by Spouse. [42] [ 50 ] An inspection of the Form 34I filed by the applicant’s spouse, the child’s birth mother, reveals that there is a signature at the second page. The signature is not witnessed. There is no signature of any independent lawyer. There is no completion of the affidavit of execution and independent legal advice.

No explanation was provided for these omissions. [43] 8: DISPENSING WITH THE CONSENT OF THE CHILD [ 51 ] Where a child is seven years of age or more, the child’s consent to the adoption is a required consent.

The consent must be provided. [44] [ 52 ] The importance of ensuring that a child seven years of age or older understands the nature and quality of the consent exercise is underscored by the statutory requirement that consent from such a child cannot be offered until the child has had the opportunity to obtain counselling and has received independent legal advice. [45] [ 53 ] The importance of the child’s involvement in the adoption process is further underscored by other statutory provisions. [46] The court must inquire into the child’s capacity to understand the consequences of adoption and, when possible, take into consideration the child’s views and wishes when making a determination within the adoption process. [47] [ 54 ] A court may be asked within an adoption application to dispense with the consent of a child over the age of seven years. [48] In short, the required adoption consent of the child may be dispensed with when obtaining the consent would cause the child emotional harm, or where the child is not able to consent because of a developmental disability.

The decision to grant an order dispensing with the child’s consent to the adoption must be made in contemplation of the paramount purpose of the governing Act — i.e. , to promote the best interests, protection and well being of the child. [49] Having said that, it should be noted that the precise language governing the dispensing of a child’s adoption consent, is much narrower than the “best interests” test. [50] [ 55 ] The adoption applicant does not assert or suggest that in respect of the request to dispense with the child’s consent, there is any evidence of “developmental disability”. [51] [ 56 ] The evidence supporting the request to dispense with the subject child’s consent is, to say the least, slim. [ 57 ] The adoption applicant’s supporting materials has asserted: [52] [Y.C.] believes that I am his father.

He is unaware of [Mr. V.A.’s] existence. [Ms. E.C.] and I believe that [Y.C.] will be very upset to learn that I am not his biological father. The adoption applicant also states: [53] I am requesting that [Y.C.’s] consent to his adoption be dispensed with. This adoption is not going to affect [Y.C.’s] day to day life and I believe that disclosing this proceeding to him is likely to adversely impact [Y.C.] and needlessly upset him. [Y.C.] does well in school. There are no behavioural issues with him. [ 58 ] The adoption applicant also asserts the following: [54] I have raised her [Ms.

E.C.’s] son as my own son. [Y.C.] does not know his father; In fact he believes that I am his biological father.

It would be best if [Y.C.’s] consent to the adoption were dispensed with. [Y.C.] has always believed that I am his father and disclosure to him that I am not, is likely to prove extremely upsetting to him. [ 59 ] If the aspect of “developmental disability” is not considered (based on the oral admission made November 7, 2011 by the adoption applicant’s counsel’s student-at-law Alice Helen Van Deven) then the only other basis for dispensing with the required adoption consent of the subject child, is on the basis of obtaining the consent would cause the child emotional harm.

[60] To repeat and to be clear, the only evidence of “emotional harm” is that stipulated in the affidavit material filed (whichwas reviewed hereinbefore). That premise was confirmed as accurate by the adoption applicant’s counsel’s student-at-law Ms. AliceHelen Van Deven, in court November 7, 2011.[55] [61] While emotional harm is not defined at

Part VII, it is defined in other parts of the Child and Family Services Act.[56] [62] In child protection proceedings at

Part III of the Child and Family Services Act, a child twelve years of age of older istreated like a party to the proceedings and is entitled to receive notice and be present at any hearing.[57] [63] To exclude a child twelve years of age or more from a child protection proceeding can only be done if the court issatisfied that were the child to be present at the hearing, it would cause the child “emotional harm”. [64] The subject child in this instance is twelve years of age. [65] A survey of case law drives the court to the conclusion that quality of evidence to support a finding of emotional harmmust be proffered by those skilled in making such determinations, for example psychiatrists or psychologists.[58] [66] This conclusion was considered in Children’s Aid Society for Owen Sound and the County of Grey v.

Jennifer T. (2003),134 A.C.W.S. (3d) 104, [2003] O.J. No. 5904, 2003 Cars​well​Ont 6268 (Ont. C.J.), per Justice Gary F. Hearn who concluded as followsrelative to the sufficiency of evidence to support a conclusion related to emotional harm: [166] In my view, the definition of emotional harm as set out in clause 37(2)(

f) would requiresome expert evidence with respect to the clinical nature of those conditions and evidence that thoseconditions are serious and can be linked to and result from the actions of the parents. The samereasoning applies to considerations under clause 37(2)(g). Children can suffer the emotional harm orsuffer the risk of likely emotional harm as described in clause 37(2)(

f) and clause 37(2)(

g) for manyreasons and I think that it would be improper course of conduct for the court to assume that, even ifthere is emotional harm or there is risk of that such harm will likely occur as contemplated by the Childand Family Services Act, such emotional harm or likely emotional harm has resulted from the conductof the parents without assistance from experts. There may be many reasons why such harm is likely orin place.

In my view, the causal connection between the harm or likeliness of the harm and the actionsrequired is difficult to establish except, as noted by Justice Steinberg, perhaps in the rarest of caseswithout some expert assistance. This is certainly my view in this particular case and one of the issuesthat the court will address is whether such expert evidence does in fact exist as alleged by Mr.

Conlanon behalf of the society. [67] The issue of the sufficiency of evidence and the need for expert evidence was also addressed in the course of a decisionRe D.S., T.P., B.P. and C.P. (Infants) (2001), (ON SC), 14 R.F.L. (5th) 414, [2001] O.J. No. 626, 2001 Cars​well​Ont733 (Ont. Fam. Ct.), where Justice Maria T. Linhares de Sousa noted at paragraph [66] the following: [66] It seems logical to me that, given the nature of the listed conditions and behaviours found ins.37(2)(

f) demonstrating emotional harm, some expert evidence from a qualified mental healthprofessional or child development specialist might be required to prove the conditions or behavioursand their serious quality, in many instances. For example, depression is a clinical or psychiatricdiagnosis and therefore requires evidence of an expert. Developmental delay, to a point, may beanother example. I say to a point because a child who is five years old and does not walk without anyphysical explanation may be declared developmentally delayed without the testimony of an expert.

Acompetent and appropriate caregiver may also be a very reliable witness to the serious aggressive orself-destructive behaviour of a child without being a qualified mental health expert. There is noquestion that in a number of cases where the courts have found emotional harm of the kind described inthe section, they have relied on expert evidence. [68] No less an acknowledged authority than long-time family court judge and authority Justice David M.

Steinberg weighedin when considering the necessity of expert evidence when he stated: [59] [4] I first wish to consider the society’s claim under subclause 37(2)(g), that is, that “there is a riskthat the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or(

v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or theperson having charge of the child.” Subclause 37(2)(

f) refers to serious anxiety, depression, withdrawal,self-destructive or aggressive behaviour, or delayed development. In order to succeed under subclause37(2)(g), I am of the view that, except in the rarest of cases, a society must produce expert evidence todemonstrate that the conduct of the parent or care given is likely to produce the symptoms in the childreferred to in subclause 37(2)(f). A court cannot, in my view, generally come to such a conclusion on itsown without some professional assistance. No professional evidence having been called on that aspectof the case, the claim under subclause 37(2)(

g) must fail. [69] Accordingly the weight of the case law is clear that, in child protection cases, in order for court to be satisfied of thesufficiency of evidence at a finding of “emotional harm” there must be evidence offered by witnesses beyond the competence of laypersons. Judges need the assistance of expert witnesses. [70] I see no reason why such an approach should not be employed in the circumstances, where the consequences of theultimate determination involve the creation of a new family unit and at the same time, the severing of a prior family connection (in thiscase of the child from the birth father).

[ 71 ] For certainty, the evidence in this case of any potential for emotional harm is simply the opinion of the adoption applicant. [ 72 ] Over and above the statutory test, there are other important considerations that should be taken into account when addressing the matter of dispensing with the consent of a twelve-year-old child. It was the intention of the legislature that children seven years of age or older should be part of the adoption process. That is not surprising, given the fact that consultation on such a grave matter involving the child’s own adoption is critical.

If one were to impose in place of the existing statutory considerations the broader “best interests test” [60] the importance of the child’s views and wishes, in an issue of such grave and critical importance are pertinent, relevant and necessary. [61] [ 73 ] Denying the child notice and subsequent participation in the adoption proceeding may permit adoption applicants to hide from the child embarrassing facts about themselves that would perhaps surface in the course of an adoption hearing. [ 74 ] Applicants in such circumstances may be inclined to marshal their facts in such a way that any disclosure of their “secrets” would be portrayed as an event that could psychologically unhinge the child. [ 75 ] If a motion to dispense with the required consent of a child over seven is granted, there is really no one who would challenge the ruling by appeal or judicial review.

Accordingly, to guard against the convenience of allowing the motion, a presiding judge’s duty should be to determine whether the applicant’s concerns are self-serving or whether the child’s emotional health is truly at stake. [62] [ 76 ] The suggestion that discovery by the child of the true circumstances might have adverse effects on the entire family, including younger children born of the adoption applicant and the married spouse (the mother of the subject child) has caused difficulty for courts. [63] [ 77 ] In a case with some similarity, a court considered the circumstances of an adolescent boy who knew the stepfather as the only father figure in his life [64] .

The application to dispense was made pursuant to clause 8(1)(

a) of the Adoption Act , R.S.B.C. 1960, c.

Section 6 of that Act conferred a discretion upon the court to dispense with the consent of the child, where the child was “incapable of giving such consent.” [ 78 ] The facts of that case set out that the adoptee child believed that his stepfather was his birth parent to whom his mother was married.

The mother expressed her concern about informing the child of the true facts of the child’s parentage (which would also include her recent marriage to the stepfather) and thought that it “would have an adverse effect on the entire family.” [65] [ 79 ] The court concluded that the child’s consent should be dispensed with, given that there was “no benefit that may be obtained from the knowledge of the existence of the natural father to the infant, but solely with the question of the infant’s rights as given by a statue to be considered in the adoption-making process.” [66] Despite the fact that the order interfered with the fundamental right of the child given by stature, the court determined that the result was in the child’s best interests. [67] [ 80 ] The court in that particular instance decided in favour of “not to know” but did so wholly on the evidence offered by the adoption applicants.

In that particular instance, the birth mother had no knowledge of the identity of the boy’s birth father. In this instance, the identity is known. [ 81 ] In an Ontario case, [68] a motion to dispense with consent for the adoption of a child was brought by the stepfather and birth mother of a thirteen-year-old child pursuant to subsection 69(6) of the Child Welfare Act , R.S.O. 1980, c. 66. That provision of the Act required that a child seven years of age or older give consent in an adoption proceedings.

That required adoption consent could be dispensed with pursuant to subsection 69(7) of the Act, where the court was satisfied, having regard to all of the circumstances of the case, that to do so was in the child’s best interests. [69] [ 82 ] The mother in that case, was unaware of the identity of the birth father and the child had known the stepfather to be his birth father.

The child was described to be at a particularly vulnerable age and delicate emotional state, where, based on the assertions made by the stepfather and mother, divulging the information of the child’s true parentage would have been devastating for the child. [70] [ 83 ] The court opined that a judge should be naturally sceptical of such requests and presumed that the motivation for the applicant in seeking such relief was to withhold from the child the knowledge of his or her true origin. [71] The court determined that withholding such information from a child required a substantial onus on the applicant to provide compelling reasons for such an order to be appropriate in the circumstances. [72] [ 84 ] The court in that instance was exceptionally hesitant in establishing a precedent that the required consent of a child over the age of seven may be dispensed with on the parents’ own view that divulging the truth to the child would cause the child harm.

Despite that, the court, on the basis of the mother’s evidence and the fact that the birth father’s identity was not known and therefore untraceable and of no use to the child, the relief sought ( i.e. , dispensing with the consent of the child) was granted. [73] [ 85 ] In a subsequent case, [74] a motion to dispense with the required adoption consent of a child was brought by the stepfather of the subject child pursuant to the provisions of subsection 69(6) of the Child Welfare Act . [75] [ 86 ] The child was seven years of age at the time of the bringing of the motion.

The child believed her stepfather to be her birth father. The child did not have any relationship or knowledge of her birth father. The birth father was aware of the child’s existence but had not attempted to form a relationship or to contact the child. [ 87 ] The motion to dispense with the consent of the child was granted on evidence that established that it would not be in the best interests of the child to require her participation.

The court found that, due to the age of the child, the proceedings would cause the child confusion and emotional upset, likely causing a destabilizing effect on the entire family relationship.

[ 88 ] In a more recent case, [76] a motion to dispense with the required consent of the child to an adoption was brought by the children’s aid society pursuant to the provisions of subsection 137(9) of the Child and Family Services Act in respect of a seven-year-old child with A.D.H.D. and possible foetal alcohol syndrome.

The adoption contemplated the permanent placement of the child with the child’s foster parents with whom the child had lived for the last four years. [77] [ 89 ] The society made submissions to the court that the child understood the process and consented to his adoption as reflected by evidence provided by the social worker. The child had told the social worker that he wanted his current home to become his “forever home”.

The lawyer appointed through the Office of the Children’s Lawyer on behalf of the child did not believe that the child could understand the legal implications of an adoption and would therefore not attest to the child’s consent. [78] [ 90 ] In reviewing the applicable statutory provisions and relevant case law, Justice Grant A.

Campbell concluded that “the threshold for dispensing with a child’s consent by way of subsection 137(9) has been set very high.” [79] Despite the child’s age, behavioural and possible developmental disorders, the test to dispense with, as determined by Justice Campbell, could not be satisfied.

It was the view of the court that to obtain consent would not cause the child emotional harm as defined within the legislation nor was the child unable to consent because of developmental disability. [80] [ 91 ] However, it is noteworthy that, in a review of the case, it will be discovered that Justice Campbell invoked the court’s parens patriae jurisdiction [81] to circumvent the need for the child’s consent.

The society’s argument therefore succeeded and the court accepted utterances of the child (referring to the child’s statement about his wishing a “forever home”) as consent, despite the fact that such did not satisfy the strict legal requirements of the statute. The child’s description of his “forever home” was said to be the child’s way of consenting to the best of his abilities and satisfied the legal process in that instance. [82] The court’s parens patriae jurisdiction could only be invoked when a gap in the legislation had been identified.

Accordingly, it was to be used in accordance with the underlining principle of providing “protection of the person for whose benefit it is to be exercised”. [83] [ 92 ] Having reviewed the legislation, particularly the provisions of subsection 137(9) of the Child and Family Services Act , Justice Campbell concluded that the legislation provided an arbitrary age of seven years, and that there could be no appreciable difference between the ability of a seven-year-old child to comprehend the legal construct of adoption and that of a child ten years younger. [84] [ 93 ] Justice Campbell further noted that the narrow exceptions to the absolute requirement of the adoptee’s consent did not consider the child’s best interest and the court welcomed reform of the legislation. [85] [ 94 ] Justice Campbell conducted a review of applicable case law.

The case law reviewed highlighted the importance the court placed on the attachment and bonding of the child with the child’s “psychological family” and the effect on the child of breaking that bond. [86] [ 95 ] Although the consequences of the foregoing did not reach the threshold of “emotional harm” to satisfy the provisions of subsection 137(9) of the Child and Family Services Act , the long-term effects of requiring further participation of the child clearly weighed heavily in the decision as Justice Campbell explained: [87] [26] . . .

To find that J.A.G.’s desire to make that home his “forever home” is not “consent” pursuant to s. 137(6) of the Child and Family Services Act , would have a very unfortunate result: The child’s legal status as a lawfully entitled member of his family would be severely affected until he is mature enough, if ever, to fully understand all of the legal implications, ramifications and nuances that encompass the term “adoption”. This result would not be in his best interest.

Rather, I find it would be most harmful to him. [ 96 ] The facts as gleamed from the foregoing underscore the significance of the child’s condition. This was a seven-year-old child diagnosed with ADHD and possible foetal alcohol syndrome.

Given the reasoning within the decision, it is clear that, despite the legislature’s clearly stated requirements having to do with required adoption consent of a child of age seven or older, courts are constantly seeking means to sidestep the need for adoption consent of such a child and avoid severing a child’s psychological attachment to the child’s family. [ 97 ] Note should be made that of the foregoing cases only that determination in Re Children's Aid Society of London and Middlesex was decided under the conditions of current legislation.

The other cases were considered under legislation requiring alternative standards to dispense with the required consent of the child. Despite the fact that the conditions to dispense with consent may not have been met, in prior cases applicants expressed their concern of harm that could come to their child or family if consent was required.

The courts, in the foregoing cases considered such concerns (without being provided expert evidence of the true consequences of such concerns) in allowing for dispensation of the consent. [ 98 ] Despite the case law today, standing for the proposition that proof of “emotional harm” must to some extent be forthcoming from persons armed with expert knowledge, courts, in the past, have accepted the non-expert opinion of a birth mother that disclosure of facts would have a destabilizing effect on a child’s life. [88] [ 99 ] For the most part (with the exception of the 2010 Re Children's Aid Society of London and Middlesex authority), the foregoing authorities are old and frankly, quite dated.

Since their reporting, Canada has ratified the United Nations Convention on the Rights of the Child . [89] [ 100 ] Research today points up the validity of the following assertion: “…Children want to be consulted when decisions are being made about their future and want to be part of the decision-making process.” [90] [ 101 ] The existing framework is found at subsection 137(9) of the Child and Family Services Act has been implemented within various jurisdictions across both Canada and the United States.

[ 102 ] A 2007 study conducted in the United States reviewed current state adoption legislation to understand how and when the voice and interests of the adoptee was heard and considered by the courts. [91] Forty-nine of the fifty jurisdictions require a child’s consent for the adoption if the child has attained a certain age. [92] [ 103 ] The lowest age in which a child is required to give consent is ten years or older, but only within six jurisdictions, wherein in twenty-five of the forty-nine American jurisdictions, the required consent of an adoptee is fourteen years of age or older. [93] [ 104 ] Where the consent from an adoptee is required, provisions are incorporated into legislation granting the courts a discretion to dispense with consent. [94] The test applied to determine whether consent should be dispensed with varies depending on the jurisdiction, however many require that it be within the “the child’s best interests”. [95] Arkansas is one jurisdiction which has found that in certain cases it is in the best interests of the child to waive consent where “a child who does not know of his or her status as a step- child or of the pending adoption proceedings or where he or she is being adopted by a step-parent.” [96] [ 105 ] This same state legislature has recently amended the age for which a child’s consent is required from ten to twelve years. [97] [ 106 ] The American Bar Association’s study found that in the majority of cases consent of the adoptee was almost always waived. [98] [ 107 ] The authors of the report were of the view that current law and advocacy efforts in the United States were insufficient to meet the needs of the children in adoption cases. [99] [ 108 ] The authors asserted that a child’s feelings and awareness about the issue of adoption started at a much earlier age then that which had been contemplated in most statutes. [100] [ 109 ] The report suggested that the child’s participation provide a path for “information of potentially unique significance” to reach the court and that it was important for the child to know that the child’s views were taken into serious consideration. [101] The child’s views were also considered to be helpful in determining whether a child’s advocate was necessary and if so, what type of representation would be necessary. [102] [ 110 ] A fundamental difference noted among the different pieces of adoption legislation is the age of which a child’s consent is required.

Ontario’s age of consent is seven years or more. It is clearly much lower than other jurisdictions, specifically the United States where half of the states require the consent of the child fourteen years of age or older. The requirement under subsection 137(11) for the Office of the Children’s Lawyer to be satisfied that a child is “fully informed” of what a child is consenting to raises questions. To what extent of the process is the child required to understand in order to be “fully informed”?

Given the limited ability of many children at the age of seven (or older) to understand the true ramifications of adoption, how reliable is such a consent? It does not seem appropriate to require consent to satisfy procedural requirements alone. However, a child’s meaningful participation in the process stems far beyond procedure and the violation of such rights cannot easily be overlooked. [ 111 ] The common element among jurisdictions is the promotion of the best interests or welfare of the child in the determination of such a decision.

Although this maybe defined or incorporated into the legislation in different ways, the struggle experienced by judges in balancing the interests involved has been illustrated in a survey of the above-captioned case law: Are a child’s interests better protected by upholding the child’s statutory right to be informed, to be heard, and to be part of the decision making process or are a child’s interests better served by respecting the family autonomy and integrity of the family unit (be it the birth or psychological family) and by protecting the child from possible harm caused by the consequences of their involvement in the process?

Any determinative conclusion to this question can only be based upon evidence provided within the circumstances of each case having regard to the requirement of a court to adhere to procedure, upholding the intention of the legislature and acting justly. 9: DECISION [ 112 ] The child is over the age of seven years. His adoption consent is required unless the moving party applicant can offer evidence sufficient to meet the twin statutory tests. The moving party applicant has acknowledged that there is no evidence having to do with the second avenue — i.e. , developmental disability.

The evidence having to do with emotional harm is from the applicant and child’s mother alone. It is both vague and more importantly insufficient. To be clear, the evidence is lacking in quality and sufficiency as dictated by the case law.

Allowing the relief sought in such circumstances, would be ignore the child’s rights and to treat the statutory tests with disdain. [ 113 ] Steps that might be taken by the applicant and his wife now to secure the evidence ( i.e. , having the boy attend with a mental health professional) to support the view that emotional harm would be visited upon the child are likely not practical.

Accordingly, going down that road is not likely to avoid the child’s becoming acquainted with the very facts that the applicant and his wife have, for years devised to conceal from him. [ 114 ] This twelve-year-old child has not been told by the adults in his life of his circumstances. This is a healthy well-adjusted twelve-year-boy without behavioural difficulties. Dispensing with his consent would run contrary to the legislative scheme.

Dispensing with his consent would exclude this twelve-year-old boy from an important decision affecting his life and give credence to the notion that a twelve-year-old boy is not resilient enough to participate and to know the truth of his own origins. [ 115 ] The notion that this fiction will never be known to him is not in his interests and frankly is not realistic. Family secrets generally get out at some point.

Is a court, in dispensing with the child’s consent under these circumstances, in effect to be a party to this fiction? [ 116 ] The adults should work together to devise a means of ensuring that Y.C. knows the truth (with the assistance of mental

health professionals), so that the adoption (with his consent) might proceed or they can choose to abandon this adoption application and carry on as they have with this boy for many years. His surname was changed several years before. This boy’s spot in this family, as it has been and is now would continue without rupture.

What is now, would continue, only without the imprimatur of a court order. [ 117 ] For the foregoing reasons, the relief sought having to do with the required adoption consent of the birth father is dismissed. [ 118 ] The relief sought having to do with the dispensing of the child’s consent is dismissed. [ 119 ] The adoption application remains outstanding. Should no further steps be taken in respect of the application within the next sixty days, the adoption application will be marked dismissed. Released: 5 January 2012 Justice Douglas W.

Phillips Ontario Court of Justice Taking into consideration that the deprivation of parental rights is an extreme measure, the court, on the basis of the above mentioned, finds it is possible to accept the respondent’s acknowledgment of the claim and to deprive him of the parental rights with respect to his daughter. To Whom It May Concerned: [ sic ] I, Svetlana Mikhailovskaia, Russian-English translator, confirmed [ sic ] that in the original document “Court decision” the word “daughter” was used instead of “son” as it is reflected in the translation. Svetlana Mikhailovskaia I, [Mr.

V.Y.A.], give my consent to [Mr. A.Z.C.] to adopt my underage son, [Y.C.], born […], 1999. I request to consider the case on adoption of [Y.V.C.], date of birth […], 1999, by [Mr. A.Z.C.], in my absence.

Saint Petersburg, twenty second of November, year two thousand and two [underlining and emphasis added] [V.Y.A.] / signed/ Saint Petersburg, Russian Federation Twenty second of November, year of two thousand and two I, Sazonova Maria Ivanovna, Notary Public of Saint Petersburg judicial district, acting with the authority of the license [ sic ] #4 issued by Administration of Justice of Saint Petersburg City Hall on April 23 1993, affirm the authenticity of signature of [Mr. V.Y.A.] which was made in my presence. The identity of the applicant is ascertained, his capacity is determined.

Registered in the Registry under #[7-13281 July 28, 2003 DECISION In the name of the Russian federation Kuibyshevskiy Federal Court of the Centralniy District of Saint Petersburg composed of: Judge Belisova O.V. Prosecutor Parshukova L.V. Lawyer Ershova N.A. With a secretary Batova A.A. Having considered in an open court session the civil lawsuit of [Ms. E.N.C.] against [Mr. V.Y.A.] for deprivation of his parental rights, Determined: The parties to the marriage have an underage son [Y.C.], born in 1999. The marriage was dissolved in March, 2000. The father is not involved in the son’s upbringing.

Since the date of marriage dissolution, he has not participated in his upbringing and has not carried out his parental duties and did not provide financial child support. In connection with the above mentioned circumstances, [Ms. E.N.C.] started an action against [Mr. V.Y.A.] for deprivation of his parental rights. The counsellor Ershova N.A., acting on behalf of the claimant as her representative according to the power of attorney, appeared in court session, she supported and requested to satisfy the claim. The respondent did not appear in court.

He submitted an application in which he acknowledges the claim for deprivation of his parental rights and requests to consider the lawsuit in his absence.

The representative of the guardianship and trusteeship body of the Municipal Council of Education “Liteiniy Okrug”, Sheremeteva I.N. ( per pro ) came to the court, supported the claim and requested to satisfy it taking into consideration the acknowledgement of the claim by respondent and the conclusion of the guardianship and trusteeship body about the appropriateness of his parental rights deprivation.

Having listened to the opinion of all lawsuit participants and the conclusion of the prosecutor who considers it possible to accept the respondent’s acknowledgement of the claim and to satisfy the claim, and having examined the case materials, court deems the claim should be satisfied on the following grounds. The case materials confirm that from the marriage with the claimant the respondent has a son [Y.C.], born on […], 1999. In March, 2000 the marriage of the parties was dissolved. The place of the son’s residence was not determined when rendering the judgement. In accordance with the

article 69 of the Judicial Code of the Russian Federation, parents can be deprived of parental rights in case they fail to fulfil their parental duties. From the explanation of the claimant’s representative and from the case materials, it was discovered that the respondent did not deal with his underage son’s upbringing, did not care about his health and education. He has arrears of payments outstanding for child support and in 2003 the criminal proceedings were instituted against him.

Assessing the circumstances of the given case, the court takes into account the fact that the respondent acknowledges the claim for deprivation of his parental rights is extreme measures, the court, on the basis of the above mentioned, finds it is possible to accept the respondent’s acknowledgements of the claim and to deprive him of the parental rights with regard to his daughter. On the ground of the mentioned and in accordance with the

article 198 the Civil Law Code of the Russian Federation the court Decided: To deprive [Mr. V.Y.A.] of his parental rights pertaining to his son [Y.C.], date of birth […], 1999, and to grant the mother, [Ms. E.N.C.], a full custody of the underage son. This decision can be appealed in Saint Petersburg court with 10 days. The Judge Signature Stamp: The decision came into effect on 08.08.06 Stamp: Copy Judge /illegible signature/ Judge /illegible signature/ Secretary Secretary Seal of the Kuibyshevskiy Federal Court of the Centralniy District of Saint Petersburg. 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. The respondent did not appear in court.

He submitted an application in which he acknowledges the claim for deprivation of his parental rights and requests to consider the lawsuit in his absence. [Coat of Arms of the Russian Federation] Birth Certificate [Y.V.C.] Was born on 30/07/1999 [ sic - underlining done for emphasis] Twenty third of July, year one thousand nine hundred and ninety nine Place of birth: city of Saint Petersburg Russian Federation In testimony whereof in the Register of births on the 30 th day of august, 1999 the appropriate record of no. 747 was duly made. Father: [Mr. V.Y.A.] Citizenship: Russia Nationality: Russian Mother: [Ms.

E.N.C.] Citizenship: Russia Nationality: Russian Place of registration: Centralniy district Civil Registry Office, city of Saint Petersburg Date of issue: January 5, 2004 [Coat of Arms of the Russian Federation] Birth Certificate [Y.V.C.] Was born on 23/07/1999 Twenty third of July, year one thousand nine hundred and ninety nine Place of birth: city of Saint Petersburg

Russian Federation In testimony whereof in the Register of births on the 30 th day of august, 1999 the appropriate record of no. 747 was duly made. Father: [Mr. V.Y.A.] Citizenship: Russia Nationality: Russian Mother: [Ms. E.N.C.] Citizenship: Russia Nationality: Russian Place of registration: Centralniy district Civil Registry Office, city of Saint Petersburg Date of issue: January 5, 2004 Translated from Russian LITEYNY MUNICIPAL DISTRICT OF ST. PETERSBURG ADMINISTRATION Order No 353 dated 03.09.2002 Change of surname of minor [Y.V.A.] Having considered a request of [Ms.

E.N.C.] registered at 33 Zhukovskogo Street, apt. 1, to change surname of her minor son [Y.V.A.] born on 23.07.1999 to “[C.]” by virtue of Art. 59 of the Family Code of the Russian Federation: I do hereby order to change surname of minor [Y.V.A.] born 23.07.1999 to “[C.]” Surname “[C.]” shall be adopted by minor [Y.V.A.]. Head of Administration /Signature/ Y.P. Kerdanovsky Seal: (Liteyny Municipal District of St. Petersburg, Administration) You asked if the child’s name had already been changed to [C.]. I spoke to our client and she said that she had his name formally changed.

She applied in October or November of 2002 to the Guardianship Authority Child Custody and Protection Agency in Russia and they approved the name change. She received a birth certificate with the name [C.] on it. Should Judge Phillips require that documentation, the client said it would take her about 4 weeks to obtain it from that agency in Russia and have it translated. This matter is to be spoken to on November 7, 2011 at 2:00 p.m. I hope this information assists you. Translated from Russian LITEYNY MUNICIPAL DISTRICT OF ST.

PETERSBURG ADMINISTRATION Order No 353 dated 03.09.2002 Change of surname of minor [Y.V.A.] Having considered a request of [Ms. E.N.C.] registered at 33 Zhukovskogo Street, apt. 1, to change surname of her minor son [Y.V.A.] born on 23.07.1999 to “[C.]” by virtue of Art. 59 of the Family Code of the Russian Federation: I do hereby order to change surname of minor [Y.V.A.] born 23.07.1999 to “[C.]” Surname “[C.]” shall be adopted by minor [Y.V.A.]. Head of Administration /Signature/ Y.P. Kerdanovsky Seal: (Liteyny Municipal District of St.

Petersburg, Administration) Certificate No 211 Record of birth of [Y.V.C.] (record no 747 dated the 30 th of August 1999) was found on the archives of the Tsentralny District Vital Records Office of the Vital Records Committee of the Government of St. Petersburg. Note: The child’s surname was changed from “[A.]” to “[C.]” by virtue of October No 353 of Liteyny Municipal District of St. Petersburg dated 03.09.2002. Date of issue: 23 November 2011 Head of the Vital Records Office /Signature/ I.V. Bryukhovskikh Seal: (Government of St.

Petersburg, Vital Records Committee, Tsentralny District Vital Records Office) Taking into consideration that the deprivation of parental rights is an extreme measure, the court, on the basis of the above mentioned, finds it is possible to accept the respondent’s acknowledgement of the claim and to deprive him of the parental rights with regard to his daughter . [ sic - emphasis added] This decision can be appealed in Saint Petersburg Court within 10 days. 157. Order final. —

(1) An adoption order under

section 146 is final and irrevocable, subject only to

section 156 (appeals), and shall not be questioned or reviewed in any court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus or application for judicial review. R.S.O. 1990, c. C-11, s. 157 .

(2) Validity of adoption order not affected by openness order or agreement. — Compliance or non- compliance with the terms of an openness order or openness agreement relating to a child does not affect the validity of an order made under

section 146 for the adoption of the child. S.O. 2006, c. 5, s. 41 .

(10) Consent of applicant’s spouse — An adoption order shall not be made on the application of a person who is a spouse without the written consent of the other spouse.

(4) Material to be filed with adoption applications. — The following shall be filed with every application for an adoption: 1. A certified copy of the statement of live birth of the child, or an equivalent that satisfies the court. 2. If required, the child’s consent to adoption (Form 34) or a notice of motion and supporting affidavit for an order under subsection 137(9) of the Act dispensing with the child’s consent. 3. If the child is not a Crown ward, an affidavit of parentage (Form 34A) or any other evidence about parentage that the court requires from the child’s parent or a person named by the court. 4.

If the applicant has a spouse who has not joined in the application, a consent to the child’s adoption by the spouse (Form 34B). 5. If required by the Act or by an order, a Director’s or local director’s statement on adoption (Form 34C) under subsection 149 (1) or (6) of the Act. 6.

An affidavit signed by the applicant (Form 34D) that includes details about the applicant’s education, employment, health, background and ability to support and care for the child, a history of the relationship between the parent and the child and any other evidence relating to the best interests of the child, and states whether the child is an Indian or a native person. I have had independent legal advice with respect to this consent. NOTE: This consent must be witnessed by an independent lawyer who is to provide an affidavit of execution and independent legal advice below.

If the person giving this consent is less than 18 years old, the consent must be accompanied by Form 34J (Affidavit of Execution and Independent Legal Advice (Children’s Lawyer)), instead of the Affidavit of Execution and Independent Legal Advice that accompanies this form.

(6) Consent of person to be adopted. — An order for the adoption of a person who is seven years of age or more shall not be made without the person’s written consent.

(7) Idem. — A consent under subsection (6) shall not be given until the person has had an opportunity to obtain counselling and independent legal advice with respect to the consent. 152. Power of court.—

(1) The court may, on its own initiative, summon a person to attend before it, testify and produce any document or thing, and may enforce obedience to the summons as if it had been made in a proceeding under the Family Law Act .

(2) Duty of court. — The court shall not make an order for the adoption of a child under subsection 146(1) or (2) unless the court is satisfied that, (

a) every person who has given a consent under

section 137 understands the nature and effect of the adoption order; and (

b) every applicant understands and appreciates the special role of an adoptive parent.

(3) Participation of child. — Where an application is made for an order for the adoption of a child under subsection 146(1) or (2), the court shall, (

a) inquire into the child’s capacity to understand and appreciate the nature of the application; and (

b) consider the child’s views and wishes, if they can be reasonably ascertained, and where it is practical to do so shall hear the child.

(4) Participation of adult, etc. — Where an application is made for an order for the adoption of a person under subsection 146(3), the court shall consider the person’s views and wishes and, on request, hear the person.

(9) Dispensing with person’s consent.— The court may dispense with a person’s consent required under subsection (6) where the court is satisfied that, (

a) obtaining the consent would cause the person emotional harm; or (

b) the person is not able to consent because of a developmental disability. (

f) the child has suffered emotional harm, demonstrated by serious, (

i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or

(

v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; 6. The child has suffered emotional harm, demonstrated by serious, i. anxiety, ii. depression, iii. withdrawal, iv. self-destructive or aggressive behaviour, or v. delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

(4) Child twelve or older. — A child twelve years of age or more who is the subject of a proceeding under this

Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

(2) Best interests of child.— Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances 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 meet those 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 secure place 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 of disruption 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. [11] I think one should be deliberately sceptical about these motions.

The applicants could be confusing their own embarrassment with concern for the child. Moreover, there is a dilemma, I think, that arises out of the child’s right to know the truth and the court’s duty to acknowledge and protect that right and the anomaly inherent in a court of law, in effect, endorsing a fiction. [9] One of the serious concerns in these matters, of course, arises out of the fact that, if he is not made aware of the facts at the time of the adoption, then there is no legal assurance that he will ever be made aware of the true facts.