“A defamation claim requires a claimant to prove three elements, on a balance of probabilities: (i) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (ii) the words in fact referred to the plaintiff; and (iii) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.”
Author: dawi
December 2, 2021 – Retroactive Child Support In The Age of Michel v. Graydon
“The Supreme Court of Canada provided further directions when considering retroactive child support claims in its decision in Michel v Graydon 2020 SCC 24 (CanLII), 2020 S.C.C. 24. These include:
o The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
o Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).
o Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and recover monies owed but unpaid.
o Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (par. 132).
o The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it because child support is a continued obligation owed independently of any statute or court order. While a court may forgive a child support debt, it remains true that such a debt is owed from the moment it ought to have accrued – no matter the length of the delay.
o Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their income increases. At any given point in time, the payor knows what their support obligation should be, while the recipient parent may not (par. 32). Failure to disclose material information is the cancer of family law litigation (par. 33).
o The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor’s interest in certainty (par. 34).
o The effective notice date is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (par. 36). In D.B.S., the court established that the date to which a child support order should be retroactive is, by default, the date when the effective notice was given to the payor (par. 118). This is the date as of which the child support obligation ought to be enforced. It is explicit in the majority’s judgment that the date of effective notice constitutes a compromise between the date of the recipient’s Application for child support and the date the amount of child support ought to have increased (par. 127).
o D.B.S. set a “soft limit” or rough guideline of recovery of three years (par. 127).
o The idea behind some form of notice is fairness. It is about having and sharing accurate information so everyone can meet their legal obligations and plan accordingly. Payors should rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are owed (par. 128).
o It is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support by the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130 and 131).”
December 1, 2021 – Test For Summary Judgment in Child Protection
“The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (FACS) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
In response to the affidavit or other evidence served by FACS, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
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- Hryniak’sfairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
- The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
- The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
- Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
- The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
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Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.
In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.”
November 30, 2021 – Defamanation
“Defamation is established where the words complained of: 1) are defamatory, in that they would tend to lower a person’s reputation in the estimation of reasonable people; 2) are about the plaintiff; and 3) have been published to a third party. To determine whether the words complained of are defamatory, the plaintiff must show the main thrust, or “defamatory sting,” of those words. In every defamation action, the trier of fact must determine the defamatory sting from both the plain meaning of the words complained of and from what the ordinary, reasonable person would infer from them in the context in which those words were published: Cusson v. Quan, 2007 ONCA 771 at para 34.
What the ordinary man would infer without special knowledge has generally been called the “natural and ordinary meaning” of the words. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.
The defamatory sting is not determined on a narrow reading of the words complained of in isolation. Context is crucial, as it informs what meaning the ordinary person will infer from the words complained of: the words must be given their meaning in context. The statements do not stand by themselves, but must be read in light of what has preceded them and what follows.”
November 29, 2021 – Appealing Arbitration Awards
“An appeal is not a re-trial of a case. As such, consideration must be given to the appropriate standard of review applicable to the questions at issue on appeal.
The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)
In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.
Reati v. Racz, at para. 30, provides a helpful summary of the principles found in Housen v. Nikolaisen:
In Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.), the Supreme Court of Canada discussed in detail the standard of appellate review. The following principles emerged from that case:
a) an appellate court should not interfere with a trial judge’s reasons unless there is palpable and overriding error; stated another way, an appellate court is prohibited from reviewing a trial judge’s decision if there is evidence upon which the trial judge could have relied to reach that decision (para. 1);
b) the role of appellate court judges is to review the reasons in light of the arguments of the parties and relevant evidence, and then to uphold the decision unless a palpable error leading to the wrong result has been made by the trial judge (para. 4);
c) on a pure question of law, the standard of review is that of correctness (para. 8);
d) the standard of review for findings of fact is such that findings are not to be reversed unless the trial judge has made a “palpable and overriding” error (para. 11);
e) appellate courts must treat a trial judge’s findings of fact with great deference, this rule being based principally on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony (para. 12);
f) a court of appeal is clearly not entitled to interfere merely because it takes a different view of the evidence; the finding of facts and the drawing of evidentiary conclusions from the facts is the province of the trial judge, not the Court of Appeal (para. 24);
g) the standard of review for factual inference is the same as for findings of fact — there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge — that ofpalpable and overriding error (para. 25);
h) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para. 27); and
i) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).
A palpable error is one that is plainly seen: Housen. Failing palpable and overriding error in the findings or inferences of facts, deference is granted to the trial judge or arbitrator.
The Supreme Court of Canada clarified that “questions of law” refers to the determination of what is the correct legal standard or test to employ in a particular case: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (S.C.C.), at para. 35. Examples of errors in law can include application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness: Housen, supra, at para. 36. In the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise: Creston Moly Corp. v. Sattva Capital Corp, 2014 SCC 53, at para. 106. (Also see Piller Investments Limited v. 1594342 Ontario Limited, 2018 ONSC 5874, at para. 16)
As set out in Creston Moly Corp., historically, determining parties’ legal rights and obligations under written contract are questions of law. Canadian courts, however, in the interpretation of contracts, have evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”: Creston Moly Corp. v. Sattva Capital Corp, at para. 47. (Also see J.W. v. Canada (Attorney General), 2019 SCC 20 (S.C.C.).)
The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.
The failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence: Housen, at para. 39. “[A]n omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.” Housen, at para. 39, citing Van de Perre v. Edwards, 2001 SCC 60 at para. 15.
The court in Housen affirmed that the scope of appellant review is narrowly defined and dictated that the appellant court should not find the trial judge to have misapprehended or ignored evidence or came to the wrong conclusion simply because the appellant court disagrees in some inferences drawn or would emphasize different portions of the evidence: Housen, at para. 56. A difference of opinion between the inferences to be drawn from the evidence and proper weight to be placed on particular facets of the evidence is not a justifiable reason for the appellant court to re-assess the evidence, particularly where there is no error in law. The determination of weight to give to evidence is to be left to the trier of fact, particularly where conflicted evidence is presented. (See Housen, at para. 59)
Absent proof that an omission in reasons is due to a misapprehension or neglect of the evidence, then the court can presume that the trial judge reviewed the evidence in its entirety and based its factual findings on this review: Housen at para. 72. Moreover, just because a trial judge does not discuss a certain point or particular evidence in depth is not sufficient grounds for appellate interference: Housen, ibid.
As set out in Southam, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., at para. 36.”
November 26, 2021 – Certificates of Pending Litigation
“The court’s discretion to grant leave to issue a CPL is set out in section 103 of the Courts of Justice Act (Ontario) with the procedure in Rule 42. The law with respect to CPL motions brought on on notice in the context of constructive trust claims was recently considered in Saggi v. Grillone, 2020 ONSC 4140; Huntjens v. Obradovic, 2019 ONSC 4343; and Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247. The Defendants rely on all 3 cases.
The factors which the court must consider on a CPL motion were set out by Master Glustein (as he then was) in Perruzza v. Spatone, 2010 ONSC 841 at para. 20:
“(i)The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. – Mast.) (“Homebuilder“) at para. 1);
(ii)The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. – Comm. List) at para. 62);
(iii)The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);
(iv)Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. – Mast.) at paras. 10-18); and
(v)The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CanLII 1414 (ON SC), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).” (Saggi at para. 29)
The first issue is whether Cindy has advanced claims that raise a triable issue about whether she has a reasonable claim to an interest in the Property sufficient to support the issuance of a CPL (Saggi at paras. 31 and 55). A claim for a constructive trust is a claim for ownership which may give rise to a proprietary interest in land in accordance with s. 103 of the Courts of Justice Act and will support a claim for a CPL (Sun Rise at para. 3; Huntjens at paras. 37-38). Perell J. summarized the availability of a CPL with respect to constructive trust claims in Boal v. International Capital Management Inc., 2018 ONSC 2275:
“65 A constructive trust arising from a breach of fiduciary duty or a constructive trust associated with a claim for unjust enrichment will support a claim for a certificate of pending litigation.
66 A constructive trust is a proprietary remedy that may be available in two general circumstances of restitutionary claims: first, a constructive trust may be available in cases in which the defendant has been unjustly enriched at the expense of the plaintiff; and, second, a constructive trust may be available in circumstances where the defendant has committed a breach of a duty in equity and in good conscience he or she should not keep any ill-gotten gain.”
The evidentiary threshold on a CPL motion is low (Saggi at paras. 45 and 62). It is not the court’s role to determine whether Cindy’s constructive trust claim will likely succeed at trial, but whether she has raised a triable issue or prima facie case that the remedy of constructive trust is available to her or is a possible remedy at trial (Sun Rise at para. 10).
In determining whether there is a triable issue on a CPL motion, the court should not assess credibility or decide disputed issues of fact (Huntjens at paras. 20-21). Rather, the court must examine the whole of the evidence after cross-examination and, without deciding disputed issues of fact and credibility, consider whether on the whole of the evidence the plaintiff’s case constitutes a reasonable claim to the interest in land claimed (Huntjens at para. 21).”
November 25, 2021 – Determining Decision-Making
“Having regard for all the variables that come into play in a particular family situation, when determining custody, access and the appropriate parental arrangement, it is important to note that no one statutory factor enjoys statutory pre-eminence. In Chin Pang, at para. 121, the court offered some useful questions to consider that are especially useful to the analysis of this case:
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- the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;
- the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent of the parent’s partner;
- the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and
- whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.
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Decision-making, and in particular, the ability of the parents to engage in joint decision-making without conflict is another essential dimension for consideration when deciding on the parenting arrangements and whether to grant joint or sole custody to parents. For joint decision-making to occur, and by implication joint custody, the parents must be able to put their own differences aside and communicate effectively about the various decisions they have to make in relation to their children. Such communications would include each parent sharing of information about the children’s address with the other, selecting schools and then interacting with that school where needed, consulting with one another and considering the other’s views when selecting and contacting treating physicians, counsellors, or other supporting specialists who might be needed to support a child’s various health and welfare needs, where the family observes religion, then discussing whatever decisions are to be undertaken in that context, collaborating in the selection of extra-curricular activities, the parents’ attendance at such events, and co-ordinating of access time with the children.”
November 24, 2021 – Parents’ Duties (According to Justice Sloan)
“I am assuming your children are your most important concern.
You are responsible to raise and for the development of a human being. You get to do this without a license. You don’t need to have specialized courses.
Your most important job in life is to raise healthy, happy, well adjusted, educated and independent adults.
That job started at your children’s birth and today is the first day of the rest of their lives.
What you do going forward into the future, will affect them for the rest of their lives.
You are the most important people in their lives and therefore you have the greatest influence BOTH positively and negatively over their development as human beings.
You as parents have the inside track to emotionally damage up your children.
You are the male and female role models they will learn from with respect to all their future relationships. Think about it! How you treat each other is imprinting on them.
How you treat each other teaches them how they should treat and be treated by the opposite sex or significant other.
Please don’t think of each other as ex-spouses, think of each other as your children’s mother & father. Show your children’s mother and father the respect they deserve because they are your children’s mother and father.
Think of how you would react if someone referred to one of your parents in unflattering terms. I suspect they better duck.
To put it another way you don’t have to like each other but you should treat each other, with at least the respect you would show a neighbour.”
November 23, 2021 – Family Law Act and Partition Act
“The F.L.A. authorizes the court to do whatever is necessary with the collectivity of spousal assets to bring about an equal division of them. It should be the statute of first resort in matrimonial disputes, but it is not necessarily the only one. I think it is significant that s. 14(a) of the F.L.A. states that “the fact that property is held in the names of spouses as joint tenants is prima facie proof that the spouses are intended to own the property as joint tenants”. This is a recognition of the identical legal title of both spouses to an undivided ownership in the whole of the property. In my opinion, it is wrong to say, as it was said in Scanlan v. Scanlan, that the F.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly owned spousal property. The two statutes are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.”
November 22, 2021: Dispensing With Consent to Adoption & Section 181, Child, Youth & Family Services Act (formerly s. 138 of the CFSA)
“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.).”