JJM and SDL were unmarried teenagers when the child was born. They continued their relationship for approximately two and a half years after the child's birth but never married. The respondents married when the child was four and a half years old in 1989. The child's surname was registered as the mother's birth surname and has never been changed. After JJM and SDL ended their relationship, the father was ordered to pay $200/month in child support and granted access. As a result of his work as a trucker he had not regularly utilized access, and had paid his support but had "never been prompt". DCL, the stepfather, sought to adopt the child, but consent was refused by the father, preventing the adoption under what is now s. 68(3) of the Child and Family Services Act. The mother and stepfather sought an order waiving the requirement of notice.
At trial, the judge agreed with SDL and DCL, finding that the stepfather had a very close relationship with the child and that the parties had a good and happy home including, at the time of the trial, a two year old child and another child expected. He found that it would be in the best interest of the child for the adoption to take place and for the consent of JJM to be dispensed with, but that access to the child by the father continue to be granted. The father appealed the order.
- Should the father's consent be waived re: the adoption order?
Roscoe, writing for the court, held that the test to be applying was asking whether the child would experience a net material gain in welfare. While the stepfather had stated that nothing would change if the adoption went through, it was quite likely that the biological father would be cut off, thus necessitating proof that this termination would be in the child's advantage. This burden was not able to be met by the stepfather. The stated aims could be achieved by other means; a name change did not require adoption, and a joint custody order could be sought to give the stepfather the ability to make medical and other decisions.
Generally consent will not be waived in stepparent adoption cases unless it is clear that the child has nothing to be gained from access with the non-custodial biological parent.