2022 SKKB 281, 2022 SKKB 281

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 281 Date: 2022 12 28 File No.: ADP-SA-00016-2021 Judicial Centre: Saskatoon IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF F.A.C. PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the parties or child herein shall not be published in any document or broadcast or transmitted in any way. Counsel: Karina L. Jackson for the applicant No one appearing for either birth parent ___________________________________________________________________________ FIAT GOEBEL J.

December 28, 2022 ___________________________________________________________________________ OVERVIEW [ 1 ] The applicant, S.B., wishes to adopt a child who has been in her care since he was five months of age.

To move forward with an adoption proceeding, she has filed an application to dispense with the consent of the birth parents and with the necessity of filing the prescribed history form, generally required to proceed with a private adoption. [ 2 ] For the reasons set out below, the application to dispense with the birth parents’ consent is dismissed without prejudice to reapplying with further materials and on proper notice to the birth parents.

Summary of Evidence [ 3 ] Shortly after the child was born in [ redacted ] 2018, the Ministry of Social Services became involved due to protection concerns with both of the parents. In April 2019, the child was placed in the care of the birth mother’s maternal aunt, C.B., and her daughter, the birth mother’s cousin, S.B. [applicant].

[ 4 ] In a text message sent by the birth mother to the applicant on June 13, 2019, she wrote: Hey the father and I have realised we dont thing were ready to raise [the child] yet and we were wondering if its all good with the workers if you could be his caregiver and raise him untill hes 16 or 18, because we can see hes happy and definitely healthy were hes at and we don’t want him going to a stranger or into adoption were its all new people that hes not used to, we just love him and we realized were not able to give him the life he deserves at the moment, as it is were trying to get our lives straightened out still and we’d like him to see him stay with family. [ 5 ] On June 27, 2019, with the assistance of a child protection worker, the birth parents signed a one-page document agreeing to privately place the child in the joint care of the aunt and cousin.

The document indicates that the placement is “until the child reaches 18 years of age”. It is on Ministry letterhead and is signed by the child protection worker. There are no certificates of independent legal advice or counselling appended. [ 6 ] The applicant has had little contact with either of the parents since the June 2019 agreement was signed. The child has remained in her primary care and she wants to formally adopt him to provide him with stability and confidence in a forever home as well as the ability to travel with her out of the country.

The co-caregiver aunt unequivocally supports the applicant’s efforts to adopt the child. [ 7 ] Approximately two years after the child had been in her care, the applicant began to ask the birth parents if they would consent to her adopting the child by signing the documents required to proceed with an open adoption. For unknown reasons, they did not respond nor cooperate. [ 8 ] In the summer of 2021 the applicant filed an application to dispense with their consent. She also applied for, and received, an order for substitutional service through Facebook Messenger and by service at their last known addresses.

After several adjournments relating to service and otherwise, the application was adjourned sine die . [ 9 ] However in September 2021, the father sent the following response to the applicant on Facebook Messenger: You have my full consent to adopt [F.A.C.], from everything I have seen I have no reason to believe he is in the wrong hands you are obviously more than capable of supporting [F.A.C.] and raising him probably, I have been super grateful for the photos and updates, the last few years ive really been in a shell and they mean the world to me as I’m well aware you go out of your way to give them to me without legal obligations, I’m sorry for the absence of response on my end it wasn’t my intentions to make this process harder although I admit I have, I won’t beat around the bush looking for an excuse why, I haven’t been able to bring my self to respond to even family in many cases I guess if I’m being honest I’m just avoiding it wishing it would all sort itself out.

Like I said you have my full consent to follow through with the adoption I do request that you please continue with the photos... even if I don’t respond. Thank you for everything [S.B.], I don’t know how to properly show my gratitude but I want you to know that it’s been a great deal less stress knowing [F.A.C.] is thriving with you even when I’m not. [ 10 ] The mother also sent a response to a message from the applicant on September 17, 2021, as follows: okay, but I thought he was under your care until 18? [ 11 ] The following day, the birth mother met with the aunt and a third party at a public library.

The aunt deposed that she advised the mother that the court required her consent and that the birth mother said she was “okay with this” and “just wanted to be able to see him when [the applicant] came to Saskatoon with him, or even through Facetime”.

She further deposed that the mother said that “she thought she had already agreed that [the child] would live with [S.B.] and myself until he turned 18 years old” when she signed the agreement with the child protection worker. [ 12 ] After this conversation, the aunt used a computer at the library to type up an agreement which the birth mother signed and the other woman witnessed. She deposed that she handed the mother a copy of the adoption documents and encouraged her to contact the applicant’s lawyer.

The document signed by the mother on that date provides as follows: September 18, 2021 To whom it may concern I [B.W.] biological mother of [F.A.C.] born [ redacted ], 2018 I consent to agree that [F.A.C.] be adopted by my cousin [S.B.] until he reaches his 18th birthday. I would like to see him when I am able to and would like pictures of him growing up. I know [F.A.C.] is in a good home which I can’t provide for him. [ 13 ] In December 2021, the birth father contacted the Ministry asking for assistance in completing the documents required to consent to the adoption.

He signed a Certificate of Counselling on December 28, 2021, with the assistance of a Ministry worker. Thereafter, efforts were made for the father to connect with a lawyer to get independent legal advice at the applicant’s expense, but he never followed up. [ 14 ] The next contact with the birth mother was in May 2022, when she initiated contact with the applicant from a rehabilitation centre claiming that she had been sober for five months and that she wanted to consent to the adoption. She provided a current mailing address.

She was served with some documents. [ 15 ] The application to dispense with parental consent was brought back before the court on August 24, 2022 but adjourned to ensure that the birth parents had proper notice. The birth parents did not attend in court on the return date or arrange to have anyone speak on their behalf.

Issue [16] Should the court grant the application to dispense with the consent of the birth parents to the adoption of theirchild? Analysis The legal framework [17] Adoptions in Saskatchewan are governed by The Adoption Act, 1998, SS 1998, c A-5.2 [Act]. The applicantgrounds her application on s. 5 of that Act, which provides as follows: 5(1) Subject to subsections (2.1), (2.2) and (3) and sections 6 and 23, the court may, if it is in the best interests of the child, dispensewith the requirement of: (

a) a consent to an adoption; or (

b) a transfer of guardianship.

(2) An application pursuant to subsection (1) may be made at any time after the child is 72 hours old.

(2.1) Subject to subsection (2.2), notice of an application pursuant to subsection (1) must be given to the director and to each person whois or may be a birth parent of the child.

(2.2) The court may, on an ex parte application, dispense with the requirement to give notice to a person who is or may be a birth parentof the child if the court is satisfied that dispensing with that requirement: (

a) is necessary to protect the mental or physical health or safety of a person; (

b) is in the best interests of the child; or (

c) is necessary in the circumstances of the case. …

(4) Where the court refuses to dispense with the requirement of consent to an adoption or a transfer of guardianship pursuant tosubsection (1), the court: (

a) shall give directions as to the custody of the child; and (

b) may make any further order that it considers appropriate in the circumstances. [18] It is trite to state that the underlying test in all aspects of adoptions, as with all decisions impacting children, isthe best interests of the children: King v Low, (SCC), [1985] 1 SCR 87 at para 27; A.Z. (Re), 2017 SKQB 100,97 RFL (7th) 191; and E.D.G. (Re), 2019 SKQB 265.

All substantive decisions must be measured through this lens, includingapplications to dispense with the consent of a birth parent. [19] There are few reported cases where s. 5 has been considered by this court, and only in the context of a stepparentadoption. [20] In A.Z. (Re), a stepparent sought to dispense with notice on the biological father, as well as his consent, to adopta 15-year-old stepdaughter.

Ultimately, Brown J. granted the application, noting that while the criteria called for by s. 5(2.2) creates ahigh threshold, there was sufficient evidence to meet that test including the consent of a teenage child who had no interest in locating abirth father she had never met. [21] That case was followed in E.D.G. (Re), where the court grappled with an application to dispense with theconsent of a birth father who was adamantly opposed to the stepparent’s application for adoption. Mitchell J. reviewed a number ofsimilar cases, distilling some basic principles for the court’s consideration.

Concluding that the primary focus must remain on the child’sbest interests, the application was granted. [22] While the facts in these cases are significantly different than the situation at hand, what is not distinguishable isthe focus on the child’s best interests and the obligation on an applicant to provide a strong evidentiary basis to meet the legal test. [23] More on point, the Ontario court in R.C. & T.G. v A.C. & B.D., 2017 ONSC 6960, was asked to dispense withthe consent of the birth parents in an open adoption where the parents were provided with notice of the application but failed to respond.In that case, like here, the birth mother entered into an agreement to place the child in the care of the applicants, following which sheretained no contact with the child.

Approximately a year later, the caregivers applied to adopt the child. Also like here, the applicantmade efforts to garner the cooperation of both birth parents with limited results. The birth mother was initially cooperative and even metwith a lawyer for independent legal advice, but did not sign the requisite documents. The applicants brought an application to dispensewith the consent of the birth parents and proceed with the adoption. Both of the birth parents were served and neither filed anyresponding materials.

By this time, the child had been with the applicants for over three years. [24] In a detailed decision, the hearing judge referenced the Ontario legislation which allows the court to dispensewith parental consent where it is in the best interests of a child to do so. That legislation, unlike ours, identifies a number of best interestfactors that the court is required to consider in making the determination. The hearing judge also cited and applied a number of legal

principles from an earlier decision where the court had reviewed and distilled the findings of numerous cases called upon to make asimilar determination in the context of a stepparent adoption, as follows: [19] In L.(S.M.L.) v. M.(J.K.), 2016 ONSC 3198 at paragraph 16, the Honourable Justice Pazaratz set out the applicable law in relationto an Application such as this to dispense with parental consent, as follows: a.

Section 138 of the CFSA [Child and Family Services Act, R.S.O. 1990 c. C.11] is conjunctive. The criteria in both clauses (

a) and (b)must be met: C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.). b. The onus is on the party who seeks to dispense with a parent’s consent, to satisfy the court that it would be in the best interests of thechild to grant the order. R. (N.J.) v. M. (R.J.), (ON CJ), [1994] O.J. No. 1331(Ont. Prov. Div.). The court mustconsider the best interests factors set out in s. 136(2). Lott v. MacRae, (ON SC), [2005] O.J. No. 1060, 2005CarswellOnt 1069 (Ont. S.C.J.). c.

The best interests of the child test is a strict test, and the facts of the case must be applied when determining whether it is appropriateto dispense with the consent of a parent. R. (N.J.) v. M. (R.J.)(supra). The Court must be satisfied that the best interests requirement hasbeen established “beyond the mere balance of probabilities.” W. v. C. (1981), (ON CJ), 35 O.R. (2d) 730 (Ont. Fam.Ct.) d. The best interests test in the context of an adoption proceeding is not the same best interests test in the context of a custody and accessproceedings.

A custody or access order can always be reviewed upon a material change in circumstances. An adoption order is final andirrevocable. It may not be questioned or reviewed in any court. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.). e. In applying the best interests of the child test, the court must weigh the advantages of dispensing with a parent’s consent to adoption,against the disadvantages. M. (J.J.) v. L. (S.D.) (1992), (NS CA), 42 R.F.L. (3d) 400 (N.S. C.A.). The court mustbalance what the child will gain and lose, with emphasis on what the child will gain. Lott v. MacRae (supra).

There must be “cogent”benefits to the child in order to terminate the blood relationship. K. (A.) v. E. (A.), 2013 ONSC 5421(Ont. S.C.J.); R. (N.J.) v. M. (R.J.)(1994), (ON CJ), 5 R.F.L. (4th) 375 (Ont. Prov. Div.) f. The court must determine whether there would be a positive contribution to the welfare of the child by dispensing with the naturalparent’s consent. This requires a review of the past, present, and future circumstances which have or may affect the welfare of the child.The court must then determine whether the child will benefit by permanently cutting the parental tie. Stoodley v.

Blunden (1980), (NS CA), 17 R.F.L. (2d) 280 (N.S. C.A.). g. It is not necessary to find parental misconduct to dispense with the natural parent’s consent to adoption. The exclusive focus is thechild’s best interest, not the rights of the natural parent. Parental misconduct or abandonment is only relevant if the non-consentingparent continues to engage in conduct that is not beneficial or even harmful to the child. S. (R.) v. W. (B.), 2011 ONCJ 185(Ont. C.J.); L.(S.I.) v. L. (L.J.), , 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 CarswellOnt 299 (Ont. U.F.C.); L.(M.) v.

M. (S.) (1989), 13 A.C.W.S. (3d) 259, [1989] O.J. No. 3, 1989 CarswellOnt 1385 (Ont. U.F.C.). h. A step-parent adoption should not be granted unless there is obvious benefit to the child and such change is absolutely necessary. M.(J.J.) v. L. (S.D.) (supra); Wolfe v. Cherrett (1978), (NS CA), 6 R.F.L. (2d) 121(N.S. C.A.). i. In cases of step-parent adoptions, the court should be mindful of improper motive. The parent and step-parent cannot use the adoptionprocess to terminate the relationship between the child and the natural father because this relationship creates difficulties for the motherand stepfather.

Smith v. Harvey (1974), (ON CA), 19 R.F.L. 367, [1974] O.J. No. 1291, 1974 CarswellOnt 975 (Ont.H.C.), aff’d at, (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 CarswellOnt 140 (Ont. C.A.). Adoption by a step-parent may beinappropriate where it would interfere with a biological father’s ongoing access to a child. M. (B.A.) v. B. (C.G.) (1987), (NL SC), 10 R.F.L. (3d) 85 (Nfld. U.F.C.). j. The decision must take into account the child’s wishes, to the extent that they can be ascertained. Lott v. MacRae (supra).

The courtmust have information about the child’s level of maturity and experiences, in order to determine the weight to be given to a child’s viewsand preferences. S. (J.C.) v. S. (C.B.R.), 2011 ONCJ 191(Ont. C.J.). k. The court must consider the child’s existing family reality. Lott v. MacRae (supra). l. The court should also consider whether a step-parent application to adopt is premature.

If the application by the step-parent is made inthe early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent’s relationship with achild before assessing the stability and permanence of the relationship between the step-parent and the other parent: Pennington, Re(1980), (NS SC), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 CarswellNS 148 (N.S. Co. Ct.). m. The stability and duration of the adoptive family must be considered. M. v. B. (1984), (ON SC), 41 R.F.L. (2d) 187(Ont. Co. Ct.). n.

The desire of a biological parent to maintain a formal parent-child relationship is relevant, and requires thorough consideration. Butthe benefits and implications of an adoption must ultimately be assessed from the child’s perspective. L. (S.I.) v. L. (L.J.) (1985), (ON SC), 51 O.R. (2d) 345 (Ont. U.F.C.). o. Where a biological father has shown a genuine interest in a child, even though separated, and the child has an emotional attachment tothe natural father, courts have been very reluctant to dispense with the father’s consent.

Where the relationship is non-existent, courts aremore persuaded to dispense with the natural parent’s consent. Smith v. Harvey (supra). p. The advantages of adoption identified by the courts include continuity of care; a positive relationship between the child an adoptingparent; the similarity in family name; security at home in a family unit; benefit of stability in an inheritance or upon the death of a

biological parent; confirmation of the reality of who is doing the parenting; and reaffirmation of sibling relationships — versusunknown, future or unlikely benefits from the biological parent. K. (A.) v. E. (A.) (supra); C. (P.) v. C. (P.C.), 2004 ONCJ 130(Ont. C.J.), 2004 ONCJ 130 (Ont. C.J.); S. (J.C.) v. S. (C.B.R.) (supra). q. The advantage of dispensing with consent includes the elimination of possible interference by the Respondent in the parenting andstability of the child by the step-parent and custodial parent. K. (A.) v. E. (A.) (supra); M. (D.M.), Re, 2008 ABQB 564(Alta.

Q.B.). [25] The Ontario court judge summarized the evidence presented respecting the child’s relationships with theapplicants and their family members, their home, their neighbourhood, and their plans for the child’s future.

Ultimately, being satisfiedthat both parents received notice of the application and that the order was in the best interests of the child, the court granted theapplication to dispense with parental consent and adjourned the adoption application to allow for the time to appeal to expire, or if anappeal is taken, to allow the appeal to be disposed of or abandoned. [26] In my view, the principles outlined in the above cases, while distinguishable in part, provide a helpful referencefor a determination of this gravity and permanence.

Application of the law to the evidence [27] Section 5(2.2) provides three bases upon which the court can dispense with parental consent: to protect themental or physical health or safety of a person, the best interest of the child or if it is necessary in the circumstances of the case.

Whiles. 5(2.2) could be interpreted to separate these into three separate and distinct grounds for granting an order to dispense, it would beimproper for the court to grant an application to dispense with parental consent on the basis of safety or necessity without sufficientevidence that it was also in the child’s best interests to do so. [28] In this case, there was no evidence or argument to suggest that the order was required “to protect the mental orphysical health or safety of a person”.

Rather, the primary focus of the materials filed and the submissions of counsel for the applicantare that the order is necessary. In that regard, she argues that the birth parents’ formal consent should be dispensed with because theysubstantively agree with the adoption but are unable or unwilling to take the tangible steps to complete the forms required by the Act andRegulations. [29] There are a few evidentiary problems with this argument. [30] First, as I indicated above, in order to be “necessary”, the order dispensing with parental consent must also be inthe best interests of the child.

Here, while I have no reasons to suspect that proceeding with the adoption without parental consent iscontrary to the best interests of the child, the evidence to support such a finding is sparse. There is almost no information about the child– his needs, interests, capacities, the home environment, meaningful relationships, plans for the future.

There is no suggestion that thecurrent arrangement is failing to meet his needs or that providing the parents with additional time to obtain legal advice would jeopardizethose needs. [31] Some evidence was tendered in support of the application to dispense with the filing of a family history form. Inthat regard, the applicant deposes that as an extended family member, she is aware of the child’s maternal family history and culture andis committed to informing him about same. That is helpful and relevant evidence.

Otherwise, taking into account the fact that anadoption order is final and irrevocable, not to be questioned or reviewed in any future court, the evidentiary basis provided to support anorder dispensing with parental consent is lacking. [32] Second, the necessity argument is more compelling, vis-à-vis, the father than it is for the mother. Let meexplain. [33] The evidence filed suggests that the father understands that an adoption represents a distinct and final change inthe care arrangement and, appreciating same, has no opposition to that change.

In that regard, the father arranged for and attended ameeting with a Ministry worker where a Certificate of Counselling was prepared and executed. He also sent a detailed text message tothe applicant which demonstrates his clear support for the adoption. [34] The materials respecting the mother are far less clear. In fact, she seems to be confused about the impact of anadoption stating more than once that she thought she already agreed to the child remaining with the applicant until he was 18 years ofage.

It is possible that she believes that what she is being asked to sign has the same legal impact as the document she previously signed,but this is not true. There is a significant legal difference between a long-term private placement and an adoption. The court cannot becertain that the mother has an appreciation of the difference or that if she does, she unequivocally consents to the adoption. [35] She also appears to believe that the adoption could be conditional on preserving her right to contact andinformation.

While counsel for the applicant advised the court that her client would be willing to amend her application for adoption toprovide for same, she provided no legislation or case law to support the contention that a conditional adoption order is available at law. [36] Third, despite counsel’s suggestion that both parents have had “ample notice” of the application, the court isunable to confidently find that the parents had actual notice of the date the application was heard given the rather unorthodox servicemethods and deficiencies with the proof of service. [37] By way of background, an order was initially made in June 2021 that the application to dispense with thefather’s consent be served by Facebook Messenger and by mail at his mailing address in [redacted], SK.

That application was adjournedwith direction that the parents be served with the new return date. That return date was also adjourned with direction that the parents beserved “by way of their respective Facebook Messenger accounts”. On August 11, 2021, the application was adjourned again with thecourt directing that the birth parents be served by Facebook Messenger. On August 27, 2021 the application was again adjourned withleave to file further materials including proof of service on the father and on September 1, 2021 the application was adjourned sine die.

[ 38 ] The matter next came before the court in August 2022 and was adjourned “to let the parents know when the matter is back in court”. No further directions were provided respecting service. By the date it was argued, the following evidence respecting proof of service had been filed: 1. An affidavit sworn by the aunt deposing that on July 9, 2021 she personally served the birth mother with the application, affidavits and service order. That affidavit also includes a postal address for the mother; 2.

An affidavit sworn by a legal assistant deposing that the applicant sent a PDF to the father by Facebook Messenger on July 9, 2021 and appending a screenshot of a Facebook message. It does not confirm service by mail as required in the without notice order; 3. An affidavit sworn by a legal assistant deposing that the applicant sent a pdf to the father and the mother by Facebook Messenger on August 12, 2021; 4.

An affidavit sworn by a legal assistant deposing that the applicant sent a number of specified documents to the father by Facebook Messenger on September 16, 2021 and that he responded, appending a screenshot of his response; 5. An affidavit sworn by a legal assistant deposing that the applicant sent a number of specified documents to the mother by Facebook Messenger on September 16, 2021 and that she responded, appending a screenshot of her response; 6.

An affidavit sworn by the aunt respecting a meeting she had with the birth mother on September 18, 2021 and indicating that “I handed [the birth mother] a paper copy of all of the adoption documents that had been served on her via Facebook”; 7. An affidavit sworn by the applicant on July 28, 2022 deposing that during a phone call with the mother on May 3, 2022 the mother asked her to send her the adoption papers again and provided her current address in Saskatoon but no affidavit relating to service of same; 8.

An affidavit sworn by the applicant on August 22, 2022 deposing that she personally served the mother on August 13, 2022 with a letter to the court, affidavits and letter adjourning the court date; 9. An affidavit sworn by a legal assistant deposing that the applicant advised her that she sent the documents to the birth father by Facebook Messenger on August 8, 2022 and that on August 10, 2022 the applicant sent him another message that court had been adjourned; 10.

An affidavit of personal service executed by the applicant providing that the birth mother was served with the updated affidavit materials and a letter to the court setting the court date on August 13, 2022; 11. An affidavit sworn by a legal assistant deposing that the applicant served the father by Facebook Messenger. [ 39 ] These documents raise a number of deficiencies with service. First, the court last granted leave to serve the birth parents by Facebook Messenger in August 2021. It is not reasonable to expect that service in that manner remains appropriate a year later.

Second, an affidavit from a legal assistant deposing that the applicant told her that she served something in the prescribed manner, is not proof of service. It is hearsay. It is also unclear as to what notice (date) was provided. Third, it is rare in any family law matter for an interested party to complete service and when they do, the court expects them to directly depose that service was effected.

Finally, when the date of the hearing is repeatedly adjourned, it is important for the proof of service to clarify exactly what date was provided in the notice so that the court can be certain that the parties were notified of the actual date when the hearing was before the court. [ 40 ] In all matters before the court, proper notice is required to ensure that where the court proceeds in default, the court is confident that the party choosing not to proceed had notice of the date and place of the hearing as well as the potential jeopardy of failing to participate.

In the context of an adoption, a higher degree of scrutiny is warranted. [ 41 ] Section 23(2) of the Act provides that no application is to be heard “unless notice of the application is first served on the birth parent”. In A.Z. (Re) , Brown J. put it this way: [22] Given the appropriately high standard that exists for dispensing with service on a birth parent when their child is proposed for adoption, great caution must be exercised and considerable scrutiny applied before an order dispensing with service made.

The significant interest a parent has in knowing, caring for and potentially having a relationship with their child cannot be jeopardized through dispensation orders that are too readily given. There are few things more highly valued than the ties between parent and child and encouragement in that regard is positive. [ 42 ] For all of the above reasons, the application must be dismissed. In the meantime, there is no evidence that the status quo is impacting the child in a negative way nor limiting his rights and opportunities.

The applicant continues to have the child in her care with full capacity to make the decisions required to ensure his needs are met. [ 43 ] This decision is without prejudice to any future application brought on notice to the birth parents and supported by a sufficient evidentiary foundation. In the event that another application is brought, the applicant shall file proof that the birth parents were also served with a copy of this decision. J. G.V. GOEBEL