Adoption Orders: When the Court Will Dispense with the Consent of Biological Parents

A recent Ontario decision outlines when a court might make an adoption order – even if the biological parents do not agree to such an order.

What Happened?

The biological parents had one child, who was born in 2013. The mother was 16 years old when the child was born. The father had not been involved with the child since his birth.

After the child was born, the mother tried to go back to school. There were difficulties with the mother’s care of the child; as a result, the child’s grandmother asked the child’s great uncle and common law partner, RC and TG, to care for him. The child had therefore lived with RC and TG since October 2014. The mother made no effort to see the child after he came into RC and TG’s care.

In August 2015, the mother and RC entered into an agreement providing that he (RC) and TG would care for the child. The agreement stated that RC would have “full and complete custody, care and control” of the child, among other things.

In 2016, documents were prepared to get ready for a consent adoption. The mother obtained legal advice, and her lawyer suggested that she could undergo counselling. As a result, the matter was put on hold.

After some time, RC and TG brought an application to dispense with the consent of the child’s parents so that they could adopt the child. In September 2017, the mother and father were served with the application materials, but neither of them filed responding materials.

The Court’s Decision

The court began its analysis by outlining that parental consent is generally required before making an adoption order under the Child and Family Service Act (CFSA). The court noted, however, that the CFSA also provides that parental consent may be dispensed with when two factors are present. Specifically, parental consent may be dispensed with when:

(1) it is in the child’s best interests to do so, and

(2) 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 notice has been made.

The court went on to explain that s. 136(2) of the CFSA outlines the factors which the court must consider when determining what is in the best interests of the child. These factors include:

• The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
• The child’s physical, mental and emotional level of development.
• The child’s cultural background.
• The religious faith, if any, in which the child is being raised.
• The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
• The child’s relationships by birth or through an adoption order.
• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
• The child’s views and wishes, if they can be reasonably ascertained.
• The effects on the child of delay in the disposition of the case.
• Any other relevant circumstance.

The court also referred to a previous decision, which set out the applicable law in relation to applications to dispense with parental consent to adoption. Among other things, the court noted that:

• The onus to satisfy the court that it would be in the best interests of the child to grant the order is on the party who seeks to dispense with parental consent.
• The best interests of the child test is a strict test, and the test used in the context of an adoption proceeding is not the same test used in the context of custody and access proceedings (as an adoption order is final and cannot be changed).
• The court must weigh the advantages and disadvantages of dispensing with a parent’s consent to adoption.
• The court must determine if the child would benefit by permanently cutting the parental tie.
• The court must take the child’s wishes into account, as well as the child’s existing family reality, the stability and duration of the adoptive family, and the desire of the biological parent to maintain a formal parent-child relationship.

In this case, the court decided that the child would benefit from a secure relationship with RC and TG through adoption. In making this decision, the court made a number of findings. First, the court noted that the child had lived with RC and TG since he was ten months old, and that he had a secure place as a member of their family. The court also considered that the child was related to RC by blood, and that RC and TG had a stable family unit. Finally, the court noted that the child had no relationship with his father, and that the mother had not made an effort to see the child since he moved in with RC and TG in October 2014. As a result, the court determined that it was in the best interests of the child to dispense with the parents’ consent to adoption.

Given that both parents had also received notice of the adoption application, the court concluded that it was appropriate to dispense with their consent to the adoption of the child.

Lessons Learned

Generally, parental consent is required before a court will make an order for adoption. There are situations, however, where courts may decide to dispense with consent.

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