M.(R.). v. M.(S.) (1994), 20 O.R. (3d) 621 (C.A.)

  • Document:
  • Date: 2018

Re R.M. et al. and S.M. et al.

[Indexed as: PM. (R.) v. M. (S.)]

 

20 O.R. (3d) 621

[1994] O.J. No. 2505

Action No. C18446

Court of Appeal for Ontario,

Dubin C.J.O., Robins and Osborne JJ.A.

November 4, 1994

Family law — Adoption — Child placed for adoption in accordance with Part VII of Child and Family Services Act — Grandparents of child applying to Ontario Court (General Division) under Children’s Law Reform Act for custody of child — Court has no jurisdiction to make custody order sought by grandparents during placement period — Child and Family Services Act, R.S.O. 1990, c. C.11 — Children’s Law Reform Act, R.S.O. 1990, c. C.12. The appellants were the paternal grandparents of a child who, with the consent of his mother and father, was placed for adoption in accordance with the provisions of Part VII of the Child and Family Services Act (CFSA). During the six-month placement period, the appellants applied to the Ontario Court (General Division) for custody of the child under s. 21 of the Children’s Law Reform Act (CLRA). The motions judge dismissed the application on the ground that he did not have jurisdiction to make the order sought. The appellants appealed.

Held, the appeal should be dismissed.

Part VII of the CFSA provides a comprehensive code for adoptions. It proceeds from the premise that the decision in respect of adoption is that of the child’s parents. Here, only the child’s biological parents came within the CFSA’s definition of “parent”. There is no provision in the CFSA that would require the appellants’ consent to the proposed adoption of their grandson.

The primary objective of the controls established by Part VII of the CFSA is the best interests of the child. In addition, there are other, related values which the adoption provisions of the CFSA seek to protect. Those values include the certainty and integrity of the adoption process itself, and the security of the prospective adoptive parents. During the placement period, the certainty of the process and the protection of the prospective adoptive parents are critical in giving effect to the child’s best interests. The adoption process begins with the parents (as broadly defined by the CFSA) making a choice that adoption is in the child’s best interests. It must be allowed to proceed to its conclusion without interference from those who are not among the class of persons entitled to control the decision in the first place.

During the six-month placement period, it would be fruitless to permit custody litigation under the CLRA between the appellants, who did not establish a relationship with the child so as to bring themselves within the CFSA’s broad definition of parent, and the prospective adoptive parents, who may or may not eventually secure an adoption order. The prospective adoptive parents were not parties to the appellants’ custody application. When the appellants’ application came before the motions judge, the competing custodial claims had not yet crystallized. The futility of embarking u<-><-><->pon the inquiry sought by the appellants was obvious and provided a practical basis for concluding that the legislature did not intend that claims for custody or access be addressed during the placement period. Further, to permit the appellants to assert a custodial claim under the “any other person” provisions of s. 21 of the CLRA would be manifestly inconsistent with the non-interference provisions of s. 143(2) of the CFSA. Once an adoption order is made, the situation may

change.

Accordingly, the motions judge did not err in concluding that a judge of the Ontario Court (General Division) had no jurisdiction under the CLRA to make the custody order sought by the appellants. He did err, however, in observing that a judge of the Ontario Court (Provincial Division) had jurisdiction under the CFSA to make the order sought by the appellants.

There is no provision in the CFSA which would permit a provincial court judge to make a custody order in favour of the appellants in the exercise of jurisdiction conferred by the CFSA.

W. (C.G.) v. J. (M.) (1981), 34 O.R. (2d) 44, 24 R.F.L. (2d) 342 (C.A.), consd

Other cases referred to

Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20, 44 N.R. 602; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1, 71 N.R. 1, 13 C.P.C. (2d) 6, 61 Nfld. & P.E.I.R. 273, 185 A.P.R. 273; Finnegan v. Desjardins (1985), 8 F.L.R.R. 43 (Ont. C.A.)

Statutes referred to

Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 3(1), 137(1), (2), (5), (8), (11), (12), 140-143, 141(3), 142(1), (2), 143(1), (2), 146(1), (2), 149(1) [am. 1993, c. 27, Sch.], (5) Child Welfare Act, 1978, S.O. 1978, c. 85 Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 21 Family Law Reform Act, R.S.O. 1980, c. 152, s. 35

APPEAL from a judgment of the General Division (Kennedy J.), dismissing an application for custody of a child.

Merrill Baker, for appellants.

Roselyn Zisman, for respondents, M.J.P. and M.R Lisa Labute, for S.M. and as agent for Jennifer Holmes, who acts for respondent A.P.

Cheryl Appell, for respondent, Adoption Agency and Counselling Service (Ontario).

The judgment of the court was delivered by OSBORNE J.A.: — The central issue in this appeal concerns the court’s jurisdiction to make an order of custody under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “C.L.R.A.”), in respect of a child who has been placed for adoption under Part VII of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “C.F.S.A.”).

The appellants are the paternal grandparents of Patrick Christopher P. (the “child”) who, with the consent of his mother and father, the respondents A.P. and S.M., was placed for adoption in accordance with the provisions of Part VII of the C.F.S.A. After the adoption placement, the appellants sought custody of their grandson under the provisions of the C.L.R.A. Their application was dismissed by Kennedy J. on the ground that all matters in respect of the child’s custody were controlled by the C.F.S.A., which provides that only the Provincial Court (including the Unified Family Court) has jurisdiction. The appellant grandparents appeal from Kennedy J.’s order dismissing their custody application.

The Facts

The child was born on January 31, 1994 to the respondent A.P., an unmarried high school student. Prior to the birth, A.P. decided that her child should be placed for adoption. It is apparent that her decision was both difficult and carefully considered. The respondent Adoption Agency and Counselling Service (Ontario) (“the agency”) was the licensed agency through which the child’s adoption was effected. The respondents M.J.P. and M.R. are the prospective adoptive parents of the child. They were not parties to the appellants’ custody application; they are, however, respondents on this appeal.

The child’s father, the respondent S.M., at first did not agree with A.P.’s decision to place their child for adoption. In early February 1994, he commenced an application for custody in the Ontario Court (General Division). On February 11, 1994, he obtained an ex parte order in that action from the local Master at Windsor. The order enjoined the respondent A.P. from taking the child out of Essex county.

The respondent A.P. took an active role in securing an appropriate adoption placement for her child. By February 20, 1994, she had interviewed a number of prospective adoptive parents. On February 20, 1994, she and the respondent S.M. met with the prospective adoptive parents identified by the respondent A.P. as the persons best suited to adopt the child. At the February 20, 1994 meeting, the respondent S.M. said that he agreed that his son should be placed for adoption with this couple. Further to that decision, he said he would abandon his application for custody.

On February 25, 1994, the respondents A.P. and S.M. signed formal consents to adoption. On March 4, 1994, S.M. filed a notice of abandonment of his custody claim and consented to an order setting aside the ex parte order that he had obtained from the Master on February 11, 1994. At that point his custody proceedings ended.

On March 5, 1994, the child was placed for adoption, through the respondent agency, pursuant to Part VII of the C.F.S.A. Since March 5, 1994, the child has resided with his prospective adoptive parents. A final adoption order has not been made pending the outcome of this appeal.

The appellants applied for custody of their grandson in the Ontario Court (General Division) by a notice of application dated March 9, 1994. Their application was made under s. 21 of the C.L.R.A., which provides: 21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

(Emphasis added)

On March 25, 1994, Kennedy J. dismissed the appellants’ application for custody. He accepted the agency’s submission that he did not have jurisdiction to make the order that the appellants sought. In his reasons, he observed that the appellants’ rights should and could be determined in the Provincial Court (or the Unified Family Court) under the C.L.R.A.

Adoption — Part VII of the Child and Family Services Act

Matters pertaining to adoption are set out in Part VII of the

        1. The following sections of the C.F.S.A. are material to this appeal:

3(1) In this Act, . . . “court” means the Ontario Court (Provincial Division) or the Unified Family Court;

. . . . .

137(1) In this section, “parent”, when used in reference to a child, means each of,

          1. the child’s mother;

          1. 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.

          1. the individual having lawful custody of the child;

          1. 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;

          1. 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;

. . . . .

but does not include a licensee or a foster parent.

  1. An order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control, shall not be made without,

    1. the written consent of every parent; or

    1. where the child has been made a Crown ward under Part III (Child Protection), the written consent of a Director.

. . . . .

  1. Where,

    1. a child is being placed for adoption by a society or licensee;

    1. every consent required under subsection (2) has been given and has not been withdrawn under subsection (8); and

    1. the twenty-one day period referred to in subsection (8) has expired, the rights and responsibilities of the child’s parents with respect to the child’s custody, care and control are transferred to the society or licensee, until the consent is withdrawn under subsection 139(1) (late withdrawal with leave of court) or an order is made for the child’s adoption under section 146.

. . . . .

(8) A person who gives a consent under subsection (2) or may withdraw it in writing within twenty-one days after the consent is given and where that person had custody of the child immediately before giving the consent, the child shall be returned to him or her as soon as the consent is withdrawn.

. . . . .

  1. Where a person who gives a consent under clause (2)(a) is less than eighteen years of age, the consent is not valid unless the Official Guardian is satisfied that the consent is fully informed and reflects the person’s true wishes.

  1. An affidavit of execution in the prescribed form shall be attached to a consent and a withdrawal of a consent under this section.

. . . . .

141(3) No licensee except a licensee exempted under subsection (5) shall,

  1. place a child with another person for adoption; or

  1. take, send or attempt to take or send a child who is a resident of Ontario out of Ontario to be placed for adoption, without first notifying a Director of the proposed placement.

. . . . .

142(1) A licensee who notifies a Director of a proposed placement under subsection 141(3) shall at the same time provide the Director with a report of an adoption homestudy of the person with whom placement is proposed, prepared by a person who, in the opinion of the Director or a local director, is qualified to make an adoption homestudy.

  1. A Director who receives a report under subsection (1) shall consider it and, as soon as possible,

    1. approve the proposed placement; or

    1. refuse to approve the placement and give notice of the refusal to the licensee and the person with whom placement is proposed.

. . . . .

143(1) Where a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, except an order made under Part III (Child Protection).

  1. Where a child has been placed for adoption by a society or licensee and no adoption order has been made, no person shall,

    1. interfere with the child; or

    1. for the purpose of interfering with the child, visit or communicate with the child or with the person with whom the child has been placed.

146(1) The court may make an order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control, and,

  1. has been placed for adoption by a society or licensee; or

  1. has been placed for adoption by a person other than a society or licensee and has resided with the applicant for at least two years, in the child’s best interests, on the application of the person with whom the child is placed.

  1. The court may make an order for the adoption of a child, in the child’s best interests, on the application of,

    1. a relative of the child;

    1. the child’s parent; or

    1. the spouse of the child’s parent.

. . . . .

149(1) Where an application is made for an order for the adoption of a child under subsection 146(1), a Director shall, before the hearing, file a written statement with the court indicating,

  1. that the child has resided with the applicant for at least six months or, in the case of an application under clause 146(1)(b), for at least two years and, in the Director’s opinion, it would be in the child’s best interests to make the order;

  1. in the case of an application under clause 146(1)(a), that for specified reasons it would be in the child’s best interests, in the Director’s opinion, to make the order although the child has resided with the applicant for less than six months; or

  1. that the child has resided with the applicant for at least six months or, in the case of an application under clause 146(1)(b), for at least two years and, in the Director’s opinion, it would not be in the child’s best interests to make the order, and referring to any additional circumstances that the Director wishes to bring to the court’s attention.

. . . . .

  1. The statement under subsection (1) shall be based on a report of the child’s adjustment in the applicant’s home, prepared by,

    1. the society that placed the child or has jurisdiction where the child is placed; or

    1. a person approved by the Director or local director.

It is agreed that the court having jurisdiction over C.F.S.A. matters generally, and adoption in particular, is the Ontario Court (Provincial Division) or the Unified Family Court (see s. 3(1)). Further, it is important to note that all steps in the adoption process required by Part VII of the C.F.S.A. were taken, and that the child had been placed for adoption under the C.F.S.A. before the appellants applied for custody under the C.L.R.A.

Part VII of the C.F.S.A. provides a comprehensive code for adoptions. It proceeds from the premise that the decision, or choice, in respect of adoption is that of the child’s parents. Here, only the respondents A.P. and S.M. come within the C.F.S.A.’s definition of “parent”. There is no provision in the C.F.S.A. that would require the appellants’ consent to the proposed adoption of their grandson.

“Placement for Adoption” is dealt with in ss. 140-143 of the C.F.S.A. Although “placement” is not defined in the Act, no issue is taken with the fact that the child was placed for adoption with his prospective adoptive parents on March 5, 1994. Nor is issue taken with the fact that, prior to that placement, all conditions precedent to placement were fulfilled.

Apart from the parental consent requirements of the C.F.S.A., the best interests of the child are addressed, prior to placement, within the framework of s. 142. This section requires the licensee to notify the director of a proposed placement, and to provide the director with a home study report. Once the licensee completes both of these steps, the director must, as soon as possible, approve or refuse the proposed placement (s. 142(2)). If, as occurred here, the director approves the placement, the statutory scheme contemplates a placement period of at least six months (although in some cases the six-month placement period may be shortened (s. 149(1)).

After placement, the best interests of the child are put before the court by way of a written statement which must be filed with the director before an adoption order may be made (s. 149(1)). Section 149(5) requires that the written statement of the director be based on a report concerning the child’s adjustment after placement. The report is prepared by the agency which placed the child.

Lastly, the C.F.S.A. clearly contemplates that, during the placement period, there is to be no interference with the child or with the persons with whom the child has been placed (see s. 143(2)).

Conclusion

In my opinion, the primary objective of the controls established by Part VII of the C.F.S.A. is the best interests of the child. See W. (C.G.) v. J.(M.) (1981), 34 O.R. (2d) 44, 24 R.F.L. (2d) 342 (C.A.). In addition, there are other, related values which the adoption provisions of the Act seek to protect. Those values include the certainty and integrity of the adoption process itself, and the security of the prospective adoptive parents. That security interest is particularly important during the placement period when it is not known whether an adoption order ultimately will issue.

During the placement period, the certainty of the process and the protection of the prospective adoptive parents are critical in giving effect to the child’s best interests. The adoption process begins with the parents (as broadly defined in the C.F.S.A.) making a choice that adoption is in the child’s best interests. It must be allowed to proceed to its conclusion without interference from those who are not among the class of persons entitled to control the decision in the first place.

Here, as I have stated, the appellants’ consent to the child’s adoption was not required. Furthermore, the policy of non- interference is clearly reflected in s. 143(2) of the C.F.S.A.

During the period of assessment, that is, the six-month placement period, it would be fruitless to permit custody litigation under the C.L.R.A. between the appellants, who did not establish a relationship with the child so as to bring themselves within the C.F.S.A.’s broad definition of parent, and the prospective adoptive parents, who may or may not eventually secure an adoption order. Such litigation would be inconsistent with the intent of the adoption provisions of the C.F.S.A., unfair to the prospective adoptive parents, and generally contrary with the child’s best interests.

Even if the appellants received what they sought, which is their “day in court” (as Mr. Baker put it), as a practical matter I query how the motions judge could have proceeded with their application. The respondents M.J.P. and M.R. (the prospective adoptive parents) were not then parties to the appellants’ custody application. The appellants’ application was made during the placement period, when it had not been determined whether a final adoption order would issue in favour of M.J.P. and M.R. Thus, when the appellants’ application came before Kennedy J., the competing custodial claims had not yet crystallized. The futility of embarking upon the inquiry sought by the respondents is obvious and provides a practical basis for concluding that the legislature did not intend that claims for custody or access be addressed during the placement period. Further, to permit the appellants to assert a custodial claim under the “any other person” provision of s. 21 of the C.L.R.A. would be manifestly inconsistent with the non-interference provisions of s. 143(2) of the C.F.S.A.

I acknowledge that once an adoption order is made, the situation may change. This is illustrated in W. (C.G.) v. J. (M.), supra, where this court considered the scope of s. 35 of the Family Law Reform Act, R.S.O. 1980, c. 152 (the “F.L.R.A.”), which provided that “either parent or any person” could obtain an order of custody or access (emphasis added). In W. (C.G.), the child’s natural mother applied for access shortly after an adoption order had been made. The mother’s application was dismissed by a provincial court judge who held that the provisions of the Child Welfare Act, 1978, S.O. 1978, c. 85 (the statute then controlling adoptions), were paramount. He thus declined to hear the access application on its merits. The mother appealed to a county court judge who held that the Family Law Reform Act gave “any person” a right to claim access. He therefore concluded that the applicant mother was entitled to have her application heard “on the merits”. The adoptive parents, supported by the Children’s Aid Society, appealed to a high court judge who allowed the appeal on the basis that once the child was adopted, it was not open to the court to grant access under the provisions of the F.L.R.A. The natural mother appealed to this court. In dealing with the ambit of s. 35 of the F.L.R.A., MacKinnon A.C.J.O. said at p. 50 O.R., pp. 349-50 R.F.L.: Presumably and in theory a complete stranger to a child and its parents could make an application for access under s. 35 of the Family Law Reform Act, 1978 and set the whole Court procedures in motion. Under such circumstances it seems to me a strange concept of having “your day in court” to proceed to a hearing when the facts are acknowledged. I would think that a preliminary application would dispose of such a matter. See also Finnegan v. Desjardins (1985), 8 F.L.R.R. 43 (Ont. C.A.).

Mr. Baker, for the appellants, submits that the motions judge had jurisdiction to deal with the issue of the child’s custody under the C.L.R.A. because the appellants’ application was brought after the child’s parents had consented to the child’s adoption, but within the 21-day period during which their consents could be withdrawn (C.F.S.A., s. 137(8)). In my view, the 21-day clock was not stopped or suspended by virtue of the appellants’ custody application. When the application came before the motions judge, the 21-day period during which the consents of the respondents A.P. and S.M. could be withdrawn had expired without either consent being withdrawn. Further, when the appellants’ custody motion came before Kennedy J., the child had been placed for adoption. I see no merit in this submission.

The appellants also submit that s. 143(1) of the C.F.S.A. speaks of the termination of access, not custody, orders. This omission, they submit, suggests that custody is an open issue. I do not agree. “Parent” is broadly defined in s. 137(1) of the C.F.S.A. The statutory definition of parent includes all persons who could reasonably have existing custodial rights. Before a placement for adoption is made, all persons coming within the definition of parent will, as here, have consented to the child’s adoption. The definition of “parent” does not include all persons who might have access rights in a given case. Thus, it seems to me to be consistent with the adoption provisions of the C.F.S.A. that rights of access are terminated once placement occurs, and that custody rights are not specifically dealt with. In addition, once the child was placed for adoption on March 5, 1994, the custodial rights of his parents (as defined in the C.F.S.A.) were transferred to the respondent agency. To permit persons who do not come within the C.F.S.A. definition of parent to assert a custodial claim would be inconsistent with the statutory scheme for adoption as set out in the C.F.S.A.

The appellants also argue that there is no conflict between the relevant provisions of the C.L.R.A. and the C.F.S.A. They submit that there must be a conflict between those Acts in order to oust the jurisdiction of a General Division judge to make an order for custody under s. 21 of the C.L.R.A. Rather than search for a statutory conflict, I prefer to consider the provisions of the two statutes from the standpoint of what I think is a clear indication of legislative intent. Once the choice of adoption is made by persons entitled to make that choice, and where the route of adoption has been followed to the point of placement, I see no room for the operation of s. 21 of the C.L.R.A. In any case, when a child is placed for adoption, the provisions of s. 137(5) of the C.F.S.A. (which transfer the custodial rights and responsibilities of the child’s parents to the licensee) do, in my view, conflict with s. 21 of the C.L.R.A.

Accordingly, I do not think that Kennedy J. erred in concluding that a judge of the Ontario Court of Justice (General Division) had no jurisdiction under the C.L.R.A. to make the custody order sought by the appellants. I do not, however, agree with his observation that a judge of the Ontario

Court of Justice (Provincial Division) had jurisdiction under the C.F.S.A. (as opposed to the C.L.R.A.) to make the order sought by the appellants. Counsel all agree that there is no provision in the C.F.S.A. which would permit a provincial court judge to make a custody order in favour of the appellants in the exercise of jurisdiction conferred by the C.F.S.A.

In an alternative submission, the appellants contend that if the motions judge had no statutory jurisdiction to make a custody order, he nonetheless had a parens patriae jurisdiction and that he erred in failing to exercise it. In dealing with this submission I am prepared to assume that the motions judge, a judge of a provincial superior court, had a parens patriae jurisdiction over the child. On the basis of that assumption, the issue is whether there was any basis upon which the motions judge should have exercised that jurisdiction.

As I have noted earlier, the legislature has provided, under the C.F.S.A., a complete code for adoptions. I see no statutory “gap”: see Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20. Quite the contrary, the provisions of Part VII of the C.F.S.A. were intended to protect the child’s natural and prospective adoptive parents from claims for custody and access in the placement period. This is made clear by ss. 137(5) and 143(2) of the C.F.S.A.

In addition, the evidence in this case provides a sound basis for not exercising a parens patriae jurisdiction. Since no benefit would be derived from reviewing the evidence in detail, it is sufficient to repeat that the appellants do not take issue with any aspect of the adoption process, or with the prospective adoptive parents. They simply say that whoever the proposed adoptive parents are, and whatever the environment in which the child is living (and will be living if adopted), they can raise the child better. I have previously referred to the futility of the court embarking on this kind of inquiry during the placement period. Such futility also provides a basis for not exercising the court’s parens patriae jurisdiction.

Furthermore, the child’s mother and father (the respondents A.P. and S.M.) both strongly express the view that it would not be in their child’s best interests to be in the appellants’ custody. They state in their affidavits that the appellants are not fit to care for the child and took very little interest in the child in the period between early February 1994, when the respondent A.P. and her child were released from hospital, and March 5, 1994, when the child was placed for adoption with the respondents M.J.P. and M.R.

In my view, the affidavits filed on the appellants’ application for custody do not provide an evidentiary foundation for the court’s intervention based on necessity arising from uncontemplated situations: see E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1. When an application for custody is made in the placement period, as occurred here, it seems to me that a court having a parens patriae jurisdiction would only exercise that jurisdiction in the clearest of cases where grounds of manifest necessity exist. There is absolutely no evidence that such grounds exist in this case. Thus, I would not give effect to the appellants’ submission that the motions judge should have dealt with the appellants’ custody by exercising the court’s parens patriae jurisdiction.

For these reasons, I would dismiss the appeal with costs. All respondents seek solicitor and client costs. It seems to me that all respondents other than the respondent agency are entitled to solicitor and client costs. I would order party and party costs in respect of the respondent agency.

Appeal dismissed.