“In L.(S.M.L.) v. M.(J.K.), 2016 ONSC 3198 at paragraph 16, the Honourable Justice Pazaratz set out the applicable law in relation to an Application such as this to dispense with parental consent, as follows:
a. Section 138 of the CFSAis conjunctive. The criteria in both clauses (a) and (b) must be met: C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.).
b. The onus is on the party who seeks to dispense with a parent’s consent, to satisfy the court that it would be in the best interests of the child to grant the order. R. (N.J.) v. M. (R.J.), 1994 CanLII 18216 (ON CJ), [1994] O.J. No. 1331(Ont. Prov. Div.). The court must consider the best interests factors set out in s. 136(2). Lott v. MacRae, 2005 CanLII 7659 (ON SC), [2005] O.J. No. 1060, 2005 CarswellOnt 1069 (Ont. S.C.J.).
c. The best interests of the child test is a strict test, and the facts of the case must be applied when determining whether it is appropriate to dispense with the consent of a parent. R. (N.J.) v. M. (R.J.)(supra).The Court must be satisfied that the best interests requirement has been established “beyond the mere balance of probabilities.” W. v. C.(1981), 1981 CanLII 238 (ON CJ), 35 O.R. (2d) 730 (Ont. Fam. Ct.)
d. The best interests test in the context of an adoption proceeding is not the same best interests test in the context of a custody and access proceedings. A custody or access order can always be reviewed upon a material change in circumstances. An adoption order is final and irrevocable. It may not be questioned or reviewed in any court. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.).
e. In applying the best interests of the child test, the court must weigh the advantages of dispensing with a parent’s consent to adoption, against the disadvantages. M. (J.J.) v. L. (S.D.)(1992), 1992 CanLII 14028 (NS CA), 42 R.F.L. (3d) 400 (N.S. C.A.). The court must balance what the child will gain and lose, with emphasis on what the child will gain. Lott v. MacRae(supra). There must be “cogent” benefits to the child in order to terminate the blood relationship. K. (A.) v. E. (A.), 2013 ONSC 5421 (Ont. S.C.J.); R. (N.J.) v. M. (R.J.)(1994),1994 CanLII 18216 (ON CJ), 5 R.F.L. (4th) 375 (Ont. Prov. Div.)
f. The court must determine whether there would be a positive contribution to the welfare of the child by dispensing with the natural parent’s consent. This requires a review of the past, present, and future circumstances which have or may affect the welfare of the child. The court must then determine whether the child will benefit by permanently cutting the parental tie. Stoodley v. Blunden(1980), 1980 CanLII 3761 (NS CA), 17 R.F.L. (2d) 280 (N.S. C.A.).
g. It is not necessary to find parental misconduct to dispense with the natural parent’s consent to adoption. The exclusive focus is the child’s best interest, not the rights of the natural parent. Parental misconduct or abandonment is only relevant if the non-consenting parent continues to engage in conduct that is not beneficial or even harmful to the child. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.); L. (S.I.) v. L. (L.J.), 1985 CanLII 707, 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 CarswellOnt 299(Ont. U.F.C.); L. (M.) v. M. (S.)(1989), 13 A.C.W.S. (3d) 259, [1989] O.J. No. 3, 1989 CarswellOnt 1385 (Ont. U.F.C.).
h. A step-parent adoption should not be granted unless there is obvious benefit to the child and such change is absolutely necessary. M. (J.J.) v. L. (S.D.)(supra); Wolfe v. Cherrett(1978), 1978 CanLII 2149 (NS CA), 6 R.F.L. (2d) 121(N.S. C.A.).
i. In cases of step-parent adoptions, the court should be mindful of improper motive. The parent and step-parent cannot use the adoption process to terminate the relationship between the child and the natural father because this relationship creates difficulties for the mother and stepfather. Smith v. Harvey(1974), 1974 CanLII 2162 (ON CA), 19 R.F.L. 367, [1974] O.J. No. 1291, 1974 CarswellOnt 975 (Ont. H.C.), aff’d at, (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 CarswellOnt 140 (Ont. C.A.). Adoption by a step-parent may be inappropriate where it would interfere with a biological father’s ongoing access to a child. M. (B.A.) v. B. (C.G.)(1987), 1987 CanLII 5148 (NL SC), 10 R.F.L. (3d) 85 (Nfld. U.F.C.).
j. The decision must take into account the child’s wishes, to the extent that they can be ascertained. Lott v. MacRae(supra). The court must have information about the child’s level of maturity and experiences, in order to determine the weight to be given to a child’s views and preferences. S. (J.C.) v. S. (C.B.R.), 2011 ONCJ 191 (Ont. C.J.).
k. The court must consider the child’s existing family reality. Lott v. MacRae(supra).
l. The court should also consider whether a step-parent Application to adopt is premature. If the Application by the step-parent is made in the early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent’s relationship with a child before assessing the stability and permanence of the relationship between the step-parent and the other parent: Pennington, Re(1980), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 CarswellNS 148 (N.S. Co. Ct.).
m. The stability and duration of the adoptive family must be considered. M. v. B.(1984), 1984 CanLII 4847 (ON SC), 41 R.F.L. (2d) 187 (Ont. Co. Ct.).
n. The desire of a biological parent to maintain a formal parent-child relationship is relevant, and requires thorough consideration. But the benefits and implications of an adoption must ultimately be assessed from the child’s perspective. L. (S.I.) v. L. (L.J.)(1985), 1985 CanLII 707 (ON SC), 51 O.R. (2d) 345 (Ont. U.F.C.).
o. Where a biological father has shown a genuine interest in a child, even though separated, and the child has an emotional attachment to the natural father, courts have been very reluctant to dispense with the father’s consent. Where the relationship is non-existent, courts are more persuaded to dispense with the natural parent’s consent. Smith v. Harvey(supra).
p. The advantages of adoption identified by the courts include continuity of care; a positive relationship between the child an adopting parent; the similarity in family name; security at home in a family unit; benefit of stability in an inheritance or upon the death of a biological parent; confirmation of the reality of who is doing the parenting; and reaffirmation of sibling relationships — versus unknown, future or unlikely benefits from the biological parent. K. (A.) v. E. (A.)(supra); C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.) (CanLII), 2004 ONCJ 130 (Ont. C.J.); S. (J.C.) v. S. (C.B.R.)(supra).
q. The advantage of dispensing with consent includes the elimination of possible interference by the Respondent in the parenting and stability of the child by the step-parent and custodial parent. K. (A.) v. E. (A.)(supra); M. (D.M.), Re, 2008 ABQB 564 (Alta. Q.B.).”