V. (J.), Re: Can a private adoption proceed without consent of the biological father?

In this case, Justice Mackinnon of the Ontario Superior Court of Justice was asked to decide whether or not to allow a private adoption to proceed without the consent of the biological father.

In paragraph 16 of her decision, she ordered the following:

1. That notice be provided to the biological father of a return date in court where the court will determine whether there is any person other than the biological mother who qualifies as a parent to this child within the meaning of s. 137(1) of the Child and Family Services Act[1];

2. A motion to dispense with the biological father’s consent, should he be found to be a parent within that definition could be brought at the same time, should the Applicant wish to do so; or

3. The biological father may in fact provide his consent to the adoption in which case the file should be returned to Justice Mackinnon for finalization in chambers.

In this case, the biological mother and father were close friends and had known each other for over two years. They were never in a romantic relationship with one another; however they conceived the child in question. Pursuant to said conception, the biological mother did not reveal the fact that she was pregnant to the biological father and so presumably he was not aware of the birth of the child either. The aforementioned information was contained in the biological mother’s Form34A Affidavit of Parentage.

Despite a home study, prepared in accordance with the legislation, which recommended that the adoption order be made Justice Mackinnon was reluctant to order same without notice to the biological father, especially once she became aware of the adoptive parents concerns that they feared that the biological father may later become aware of the existence of the child and consequently contest the adoption.

Therefore, the issues that needed to be dealt with were whether a biological father who is unaware of the existence of the child is a parent and as such whether his consent to the adoption is required.

After considering the relevant case law and applicable rules[2], Justice Mackinnon stated that the court is not required to accept the biological mother’s submission that a biological father does not qualify as a parent. Rather, as required by Form 34A, if she knows of his identity he must be named and pursuant to same the court can require her to adduce additional evidence in order to establish with certainty that the biological father is not a “parent”.

Justice Mackinnon also stipulated in her judgement that generally and pursuant to the case of L. (A.) v. M. (S.) the practice is to encourage notice to all but a narrow category of birth fathers. More specifically, the exceptions to the requirement of notice would be rape, one night stands, and cases where the security of the birth mother would be threatened by any birth father involvement. Justice Mackinnon also included the category of “casual fornicators” to the list of exceptions and pursuant to S. (C.E.) v. Children’s Aid Society of Metropolitan Toronto defined same as an individual who has not demonstrated any interest in whether he did cause a pregnancy or demonstrate even the minimum responsibility to the child.

Justice Mackinnon also stated that one final consideration which must be had and which could potentially favor proceeding with the adoption on non-consent to the biological father. She stated that consent could be dispensed with if it was shown that delay in placement or in finalizing the adoption incurs serious risks of long-term behavioural, emotional or psychological hard for the child. However, prior to doing so the above mentioned case of S. (C.E.) v. Children’s Aid Society of Metropolitan Toronto, stated that courts are able to exercise their legislative authority contained in s. 152(1) of the Child and Family Services Act and 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.

[1] 137.(1) In this section,

“parent”, when used in reference to a child, means each of,

(a) the child’s mother,

(b) 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,

(c) the individual having lawful custody of the child,

(d) 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,

(e) 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

(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children’s Law Reform Act,

but does not include a licensee or a foster parent.

[2] See: Family Law Rules, O. Reg. 114/99
7. (1) A person who makes a claim in a case or against whom a claim is made in a case is a party to the case.

(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.

(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

34. (4) 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.