The Child Youth and Family Services Act

The Child Youth and Family Services Act came in to force on April 30, 2018 and the reasons for decision in Re SMandKL (Re SM 2018 ONSC 5145 Can LII)by the Honourable Mr. Justice Mitrow were released on September 18, 2018. This became a matter on consent with full support by the Attorney General of Ontario as intervener.Declaratory relief issued to impugn the pre-existing standing for an adoption application by unmarried individuals living together in a non-conjugal relationship.

“Specifically it touches the individual’s freedom to live life with a mate of one’s choice in the fashion of one’s choice. Here,it’s the joint decision not to marry nor live in spousal relationship. Moreover, this would be in the context of a child’s(or children’s )natural perception.

“The front door exclusion of non-spousal joint applicants without any opportunity for an assessment of their suitability as adoptive parents underscores the exclusion’s arbitrariness… The limitation is being imposed arbitrarily. While joint applicants who are spouses may have a stable relationship, that is not always the case. The exclusion of non-spousal couples is indicative of a presumption that they do not or are not likely to have stable relationships. “His Honour extended his reasoning in the context of public policy. As the Attorney General of Ontario submitted:
“Statutorily restricting who can apply to adopt these children and youth on the basis of marital status lessons the chances of a permanent family for Crown Wards.”

The presiding Judge invoked the Doctrine of Severance and extricated the impugned provision by surgical precision(s.15 Charter)without affecting statutory or historical continuity.This decision presents a thoughtful adaptation of public policy objectives to our developing understanding of the myriad possibilities of Canadians forging their own values in family dynamics as guaranteed by our Charter. As such, it may be simply seen as a post- modern subdirectory correction to the inevitable vicissitudes of public policy.

In no way does this ruling detract from the bright light of the new legislation.The Child, Youth and Family Services Act(2017) is a singularly significant step forward both in Ontario and indeed,globally. Notably in the statute’s preamble, there is specific reference to building upon the principles of the Universal Declaration of the Rights of the Child. Statutory references include the intregal provision of the views and wishes of children.Since the pioneering work of Wilson McTavish QC since the late 1970s Ontario‘s Office of the Children’s Lawyer has consolidated a responsible institutional capacity in obtaining these “views and preferences”.

When we extrapolate the constitutional reasoning of Re SMandKL,it is readily apparent that this Charter scrutiny will extend well into Ontario’s future. In particular, we have seen constitutional cases involve consideration of the governmental funding as a material interest.The rocking horse of public policy may very well teeter with funding challenges in the context of developing theories in the social sciences.

The law is living; it’s being and becoming. Fortunately in Canada we have an alert and apolitical judiciary who can actively participate in these inevitable course corrections.We strive to fully support new parenting combinations which embody the age-old attributes of love, patience and stability in the best interests of our Canadian children.

* Reference: http://digital.lawtimesnews.com/i/1080312-february-11-2019/9

Nigel Macleod
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