Adoption of a Child: Can an adoption proceed without the biological father's consent?

S. (S.), Re., 2010 CarswellOnt 4665, 2010 ONCJ 235

This case arose from the Adoption Application for a child who was placed for adoption by her biological mother. The main issue in this case was the fact that the mother refused to provide any information about the biological father and that she had signed the Affidavit supporting the adoption which stated that there was no male parent and that she was the only "parent" as defined by the Child and Family Services Act. Furthermore, the father was not actually aware of the child's existence as the mother had chosen not to inform him that she was pregnant. There was no reason for the Court to believe that the father could not have been located and therefore, the concern was whether he should be notified of both the existence of the child and of the potential adoption. At the time that this decision was written, the child was three years old and had been with the potential adoptive parents since birth.

The State of the Law

In order to determine whether the father should be made aware of the child's existence and the potential adoption, the Court reviewed the laws of Adoption under Part VII of the Child and Family Services Act. Section 137 requires the consent of the parents to the adoption and provides a definition of who is considered to be a "parent." A parent, as defined by this section, would include the following persons:

  1. the child’s mother;
  2. an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that he is not the child’s natural father;
  3. the individual having lawful custody of the child;
  4. an individual who, during the twelve months before the child is placed for adoption under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child’s support;
  5. an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child; and
  6. an individual who has acknowledged parentage of the child in writing under section 12 of the Children’s Law Reform Act,

The legislation considers the fact that consent from both parents may not always be available and therefore, Section 138 was included to allow for the dispensing with consent where it is in the child's best interests to do so, or where the parent whose consent is required has received notice of the adoption and of the application to dispense with consent.

The Court took this opportunity to discuss the fact that there is no real requirement to give notice to a biological father if he does not fall under one of the above-noted descriptions of a "parent," and the problems that this poses with the current belief that it is in the child's best interests to have a relationship with both of their biological parents. From the Court's perspective, an important factor which should be considered before determining whether a biological parent should be given notice of the existence of a child and of any potential adoption, is whether the relationship between the biological parents was merely causal in nature such that the mother ought not to be put in the position of locating and notifying the father. If the relationship was a causal one and the father has shown no sense of responsibility to the mother or to his child, then there should be no reason why that person should be notified.

On the other hand, the Court noted again that what is considered to be in the best interests of the child usually includes the fact that a child should have a relationship with their biological family and therefore, when adoption is in question, should be placed with their biological parents or extended family before being adopted by strangers. With this in mind, then it would only make sense that the biological father should be notified of a child's existence and given an opportunity to decide whether he would want to care for the child, whether or not his relationship with the child's mother was a casual one.

As pointed out by the Court, the complexity of this kind of decision lies in the fact that the Court is being asked to weigh a child's rights as against those of his or her biological parents. Part of the consideration of what is in the best interests of the child includes the fact that where there is a potential for adoption, the child should be placed in a permanent home as soon as possible to allow for a maximum feeling of certainty for the child that they are in a loving and permanent home. Therefore, a Court must determine rather quickly whether a child should be placed with a potential adoptive family or with a biological family member.

Taking the above into consideration, it was the Court's opinion that the Legislature should reconsider the fact that currently the state of the law is such that a mother does not have an obligation to notify the biological father even if the relationship was more than casual. This opinion was arrived at based on the importance of a child's connection to his or her biological family.

Analysis in this Particular Case

The Judge found that the parents in this case were involved in a relationship that was more than casual and therefore, there was no reason why the biological father should not have been notified of the pregnancy and the potential adoption in order to at least be given the opportunity to take responsibility for his child. Notwithstanding this opinion, the Court had to recognize that the current state of the law is such that the mother was not required to inform the biological father of the pregnancy or the potential adoption as he did not fit within the definition of a "parent" as outlined in s. 137 of the CFSA. Furthermore, the child was three years old and had been in the care of the adoptive parents since birth. As these individuals were the only parents whom she had ever known, removing her from them to place her with the biological father was unfathomable as this could never be considered to be in her best interests. Therefore, the adoption was allowed.

This case is an interesting one as it shows the tension between what the law currently states and how this can be considered to be contrary to popular public opinion of the day. The Court in this instance was effectively stating that the laws surrounding adoption and the rights of both biological parents to be aware of the situation and of the child to have a relationship with his or her biological family, need to be changed. However, changes of this nature are to be dealt with by the Legislature, and are out of the hands of the Court. Based on the facts of this case however, it is the writer's belief that this decision ultimately was not the correct one.

In 2011, with the current belief that it is in a child's best interests to know their biological family, The Court should have at least made the determination that the father was to be notified of the existence of the child, and of the potential adoption, to give him the opportunity to put forward a parenting plan which may have been as simple as a request for access with the child. Giving the father notification would not have necessarily led to the child being removed from her adoptive parents and placed with the father. In fact, it is likely that the child would have remained with the adoptive parents, as it would likely have been determined that this was in her best interests. The difference would have been that 1) the father would have known that he has a child, and 2) he would have been given the opportunity to know the child had he decided that he wanted to do so.