C.L.W. (Re), 2018 ONCJ 223
This case looked at the issue of whether parental consent is required and whether the biological parent is entitled to notice and to be served with the adoption application and relevant material.
The adult child, D, had not seen his biological father since he was 12 years old, and he had not lived with his mother and step father since he left to attend university. He is now married, working and is financially independent. D’s step-father applied to adopt D who is the adult son of his spouse. The applicant and D did not wish to send notice of the adoption proceedings to his biological father, who had not been involved in his life since he left him, his brother and mother many years ago. Furthermore, D asserted that he fully understood the nature and consequences of the legal proceedings, being a mature independent adult, and having further reviewed and discussed this adoption with independent counsel. The applicant’s motion was for an order dispensing with the consent of the biological father if consent is required. The applicant also sought an order dispensing with notice and service of any order made on the motion.
Under section 146(3) of the Child and Family Services Act, a court may make an order for the adoption of a person over 18 years of age or of a child who is 16 years of age or more and has withdrawn from parental control. Under section 138(1) the biological parent’s consent can be dispensed with. The court noted that the case law is well settled that where a child is 16 years of age or more, and has withdrawn from parental control, or where the person to be adopted is over the age of 18, the consent of the proposed adoptee’s parent to the adoption is not required. The applicant submitted that if consent is not required for the adoption of an adult, then notice should also not be required for such an adoption. J. Starr of the Ontario Court of Justice found that the biological father falls within the category of those the Act defines as a parent and as such, his legal rights may be forever defeated if the adoption is granted. Additionally, the court is bound by the principles of fundamental fairness, and that it is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. Even more importantly, the court is bound by the Charter and obliged to ensure that the rights afforded to individuals under section 7 of the Charter, are not infringed arbitrarily. In this case, the court found that the applicant put forward no evidence of efforts to locate and serve the biological father or of the results of those efforts, and that there was no legal basis under which it could grant an order dispensing with service.
Ultimately, the court added the biological father as a party to the proceeding and held that notice is required even when the person to be adopted is an adult. This case stands for the proposition that a biological parent has the right to have their voice heard when their adult child applies to be adopted. This decision is a useful addition to adult adoption cases in Ontario.