The nature of a custody application and an adoption placement are very different.  A child’s custody is always open for a court to review based on the child’s best interests.  An adoption order, once made, is final and non-variable.

In Ontario, a parent or “any other person” can make an application for custody or access to a child.  However, if a child has been placed for adoption, section 143(2) the CFSA prohibits anyone from “interfering” with the child (i.e., including a custody application).

In the particular facts of  K.D.S. v. K.M.S., Justice Nelson of the Superior Court suspended a grandfather’s custody application on the basis that the court was without jurisdiction to entertain it because the child had been placed for adoption.

However, the court made that ruling despite the fact that the grandfather’s application for custody was issued before the child’s placement for adoption. So, how can the grandfather’s custody application “interfere” with an adoption process that has not started?

That part of the decision is difficult to understand given the wording of section 143(2) the CFSA, which prohibits interference with the adoption process after a licensee or agency has placed the child for adoption. The Act does not say that the adoption process starts with a mother’s decision to pursue the adoption route.

Nonetheless, on the basis that the adoption process begins when the mother decided that she was going to place her unborn child for adoption, the court found that the grandfather’s custody application was prohibited because it “interfered” with the adoption process.

The court found that biological father’s lack of consent to the adoption was of no consequence, and did not impeach the placement for adoption.

In a highly technical discussion, the court found that the biological father failed to meet the statutory definition of “parent” under section 137 of Ontario’s Child and Family Services Act (CFSA) and section 8 of the Children’s Law Reform Act (CLRA).

In the particular facts of the KDS case, the Court found:

“Neither the father, the grandfather, nor the grandfather’s 32 immediate family members satisfied any of the conditions in section 137(1) of the CFSA.  None of them is an individual under section 8(1) of the CLRA.  None of them has acknowledged parentage of the child in writing under section 12 of the CLRA.  None of them is, under written agreement or court order, required to provide for the child, has custody of the child or a right of access to the child.  None of them has lawful custody of the child.  “Lawful custody” has been interpreted to mean the actual exercise of custody, as opposed to the entitlement to the exercise of custody: …  In this case, the point is moot as no custody or temporary custody order has been granted.

With respect to section 137(1)(d) of the CFSA, none of them has acknowledged parentage of the child and provided for the child’s support;

Further, neither the father nor the grandfather has, during the twelve months before the child was placed for adoption under Part VII of the CFSA, demonstrated a settled intention to treat the child as a child of his or her family.”

In the latter case, the court relied on case authority to find that treating a child as a child of one’s family meant “immediate family” instead of the “extended family” of a grandparent.

The case is a difficult one to grapple with: essentially the court says that the child’s best interests are served by not interfering with an adoption process that was started after the grandfather’s custody application, and when opposed by a biological father.

In today’s world, it is not unusual for children to be conceived after short relationships and even “hook ups”.  Perhaps it is time for the legislature to consider expanding the definition of parent to include a biological father whose identity is known to the mother.