UNUSUAL ADOPTION CASE

This is a very unusual and somewhat strange adoption case of an adult. It appears that the decision may be wrong in law and may open some of the floodgates set up by previous court decisions to prevent the use of adoption law to circumvent immigration law. Unfortunately, because this is simply an endorsement of the record, the court does not describe in detail the surrounding circumstances of the adult child and does not mention if the adult child has pursued a permanent residency application.


C.T.A. (Re)

RE: C.T.A. Adoption Application

[2010] O.J. No. 1738
2010 ONSC 2222Court File No. FA-10-013
Ontario Superior Court of Justice
J. Mackinnon J.
Heard: By written submissions.Judgment: April 15, 2010.
(17 paras.)

ENDORSEMENT

J. MACKINNON J.:--

A. Introduction

1 This is an application by the C.'s to adopt an adult child, C.T.A. The C's are spouses. The child was born in the Philippines and became their foster child under the Foster Parents Plan of Canada in 1994 at the age of 11 years. During the intervening years, the C.'s developed a close relationship with C.T.A. In 2003, the C.'s visited C.T.A. and her family in the Philippines. Two years later, C.T.A. came to visit them in Ontario. The C.'s financed C.T.A.'s university education in the Philippines. When C.T.A. was experiencing difficulty finding suitable employment, they invited her to come here to study. C.T.A. arrived in Ontario in February 2007 as an international student. She completed intensive English language training and then enrolled in a Business Administrative program at Algonquin College. She will graduate this spring and already has an offer of full time employment.
2 Both C.T.A. and her parents in the Philippines have filed affidavits in support of and consenting to the proposed adoption.

B. Issues Raised by the Application

3 This adoption application, although unopposed, raises four legal issues. These are:
1. Whether C.T.A.is an Ontario resident as required by s. 146(5) of the Child and Family Services Act1;
2. Whether the application is brought for a collateral purpose related to immigration status;
3. Whether the essential purpose of adoption, namely to fill a parental gap, is met; and,
4. Depending upon the resolution of the first three issues, the court may proceed to consider whether the proposed adoption will promote the adult child's best interests, protection and well being.

C. Residence

4 The word "residence" does not have a single, legal definition. It is considered to pose a question of fact to be determined in the context of the specific legislation. In Re Rai2, the Ontario Court of Appeal considered the residency requirement under the adoption provisions of the Child Welfare Act3 then in force. The Court held at pp. 5-6:
Residence is not established by mere presence in the Province on a casual visit, or while passing through. Indeed, in such a case, our Courts would decline jurisdiction to change the status of a person belonging to another civilized country because of the respect we have for the laws of that country. But, apart from exceptional cases, the purpose of the statutory requirement of residence will have been met if there is a reasonable connection between the child and Ontario, and if the child has lived here for sufficient time to enable an effective investigation to be made into the suitability of the adopting parents and whether the proposed adoption order would be in the best interests of the child.
In the present case, the child is no longer a mere visitor, whatever may be her technical status under the Immigration Act. She has lived in Ontario with permanent residents since her arrival on February 27, 1977, in the hope of adoption, and she attends school as a regular student. I think she has met the jurisdictional requirement that she reside in Ontario and that the application for adoption ought to have been dealt with on its merits.
5 C.T.A. has lived in Ontario with the C.'s for over three years, since February 2007. She has attended school and worked part time since then. She holds an Ontario driver's license. Her plan is to obtain full time employment upon graduation under a work permit, and after the one year requisite period, to apply for permanent residence status as is permitted under the Canadian Experience Class Program of the Immigration and Refugee Protection Act4.
6 On these facts, C.T.A. meets the statutory requirement for residence in Ontario.

D. Collateral Purpose

7 In Re K.5, the Ontario Court of Appeal ruled that if an adoption order is sought to satisfy requirements of immigration law, such an order would not fall within the intent and purpose of provincial adoption legislation. The Court held that where proposed adoption "has the appearance of an accommodation adoption to get around the stringencies or requirements of the Immigration Act, R.S.C. 1970, c. I-2, and the Court and the provincial legislation should not be used as a means to achieve that end."
8 I am satisfied that the application before the court is bona fide. The relationship between the Applicants and C.T.A. has endured for 16 years. It commenced as an international foster parent/child relationship and has grown since that time. The relationship provides an underlying basis for the proposed adoption, independent of C.T.A.'s immigration status here.
9 The Applicants have no other children. They have formed a close parental bond with C.T.A. over the past 16 years. C.T.A. has referred to them as Mom and Dad for some 10 years. The Applicants have provided C.T.A. with financial support and guidance over a long period of time. The three have lived as a family for the past three years. This case is not at all similar to Re K. where the Court found that "the adoption of one brother by another with a 10-year age difference ... appears to us to be inconsistent with the intent of ... of the Child Welfare Act."6 Nor is it similar to Re S.W.7 where the relationship was of one year duration previous to which, the applicant and adult child had only known each other as pen pals.
10 In addition, C.T.A. has lived in Ontario for over three years under a student visa. When she graduates, she is entitled to apply for a post graduate work permit that would allow her to continue to reside and work her for up to three additional years. It is likely that after one year full time employment that she will qualify under the Canadian Experience Class Program to apply for permanent residence status. Accordingly, while the Court of Appeal has also stated that the status of a child under immigration laws does not affect the jurisdiction of the court, it is relevant to consider in determining "whether the applicants really intend to create a new relationship of parent and child, or whether the statute is being used for a collateral purpose."8
11 Based on the evidence before me, I find that this application is bona fide and is not for collateral purposes related to C.T.A.'s immigration status. If the adoption order is granted, it may be the basis to accelerate the timing of C.T.A.'s application for permanent resident status, but the facts are such that eligibility for that status is probable in any event.

E. Parental Gap

12 Re Proposed Adoption of A.L.K.Q.9 held that the evidence in support of an adult adoption must satisfy the court that there is a parental gap that needs to be filled; that the biological relationship should be replaced by a new parent-child relationship in the form proposed by the applicant.
13 C.T.A.'s parents are alive and well and living in the Philippines. In all, they have nine children and are described as living in poverty. With legal advice, they consent to the proposed adoption of C.T.A. They state that they know of C.T.A.'s intention to reside permanently in Ontario and agree with that decision. C.T.A. states that for the past three years and more, the C.'s have provided her with the parental guidance, advice and support that she needs as a resident of Ontario. Her own parents would be incapable of doing so given their own limitations as to experience with this culture, and social and work environments. C.T.A. acknowledges that she will always have family in the Philippines, but that her parents are here, and are the C.'s.
14 The C.'s describe in detail the building of their parental relationship to C.T.A. over the years. They describe the help they have given her to adjust to and learn about life in Ontario. They agree that her parents are not equipped to provide C.T.A. with meaningful guidance as to her personal, professional and cultural life in Ontario.
15 In my view, there is a clear parental gap in C.T.A.'s life as she has, with valid reasons, chosen it to be. The C.'s are ideally suited to fill that gap. Although C.T.A. is an adult, in her circumstances, she will clearly benefit from the parental guidance and support that the C.'s can provide her in the years to come. In my view, the proposed adoption is, in its essence, designed to provide C.T.A. with the parental relationship that she needs and that is missing in her new life in Ontario.

F. Best Interests

16 The proposed adoption is in C.T.A.'s best interests. It will provide her with a strong parent-child relationship well equipped to assist her in all aspects of her life. It meets the essential requirement of an adoption, namely, to fill the parental void left by great geographic distance and unfamiliarity with the local economic and cultural environment that C.T.A. has chosen to live in. The proposed adoption is authentic and not for any improper collateral purpose.

G. Decision

17 An order will go allowing the adoption of C.T.A. by the C.'s, as asked.

J. MACKINNON J.