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Sexual Orientation - General. A.A.H. (Re) [parentage/adoption]
In A.A.H. (Re) (Ont Div Ct, 2025) the Ontario Divisional Court allowed an appeal, this brought against an adoption-related order that "dismissed the application, finding that the adoption of a child by a parent is logically impossible under the CYFSA".
Here the court considers whether a parent can adopt a child [under CYFSA s.199], an issue apparently brought about as a result of same-sex parents wanting to travel internationally with the child:[1] T.H. and A.B. are same sex spouses who married on November 16, 2013. Their child, A.A.H. was conceived using assistive reproductive techniques and was carried by A.B. until birth. The child is therefore biologically related to A.B. but not T.H. Both A.B. and T.H. are listed as the parents of A.A.H. on the child’s Statement of Live Birth. Both A.B. and T.H. have co-parented and raised their child together.
[2] T.H. applied for an adoption order pursuant to s. 199(2)(b) of the Child, Youth and Family Services Act, 2017 S.O. 2017, c.14 Sched.1. (“CYFSA”). The adoption was consented to by A.B.
[3] On March 24, 2025, Justice R. Restoule-Mallozi dismissed the application, finding that the adoption of a child by a parent is logically impossible under the CYFSA. Restoule-Mallozi J. found that given both T.H. and A.B. are the legal parents of A.A.H. named in the Certificate of Live Birth, they could not then also adopt their own child.
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[5] The appellant, T.H., appeals against this decision. This appeal is brought to the Divisional Court pursuant to s. 215(3.1) of the CYFSA.
[6] For the reasons that follow, I am satisfied that the appeal should be allowed and the adoption approved.
Analysis
[7] The appeal before me is on a question of law. The issue is whether the presiding judge applied an incorrect standard, a mischaracterization of a legal test, or a similar error in principle. The standard of review on appeal is that of correctness: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8,33 and 36.
[8] Sections 4 to 13 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) set out the rules of parentage in Ontario. In 2016, the CLRA was amended to reflect a broader definition of parentage. Section 8(1) provides that if the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child
[9] The rules of the adoption are set out in the CYFSA. Section 199(2)(b) of the CYFSA provides that an application may be made by a relative of a child, a parent of a child, or the spouse of a child’s parent, for an order for the adoption of a child. The power of a court to make an adoption order under this section is discretionary, taking into account the child’s best interests.
[10] In this case, no issue is taken with respect to the parenting by T.H. and A.B. They have co-parented A.A.H. since birth and are actively involved in the child’s life.
[11] T.H. and A.B. wish to protect their status as parents if they travel with A.A.H. outside of Canada. International recognition of adoption is governed primarily by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) which mandates that adoptions made in accordance with its provisions are recognized in other contracting states. The appellant submits that the adoption of A.A.H. is in the child’s best interest because it provides additional international protections in the event that the family travels to a signatory country. It may also provide additional protection if the family travels to a non-signatory country that nevertheless recognizes Canadian adoptions.
[12] The appellant submits that s. 199(2) of the CYFSA contemplates and permits the adoption of a child by a parent and therefore Restoule-Mallozi J. erred in law by refusing to order the adoption of A.A.H.
[13] I find that the wording of s. 199(2) is unclear with respect to whether a parent can adopt their own child. The provision simply permits a parent to “apply” for an order for the adoption of a child. It is unclear to me if this means the parent can apply for an order for the adoption of the child by another person or apply for an order for the adoption of the child by the parent. The legislation is silent in this regard.
[14] Where statutory provisions are subject to differing, but equally plausible interpretations, a court may interpret the legislation in a manner consistent with the Charter, and in particular the equality rights guaranteed by s. 15: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559 (S.C.C.) at para. 62; A.(A.) v. B.(B)., 2007 ONCA 2 at para. 25.
[15] I find that section 199(2) is subject to two equally plausible interpretations. One plausible interpretation is that a parent may apply for an adoption order for the adoption of their own child. The legislation does not explicitly prohibit this.
[16] In the circumstances of this case, I am satisfied that interpreting the legislation in a manner that permits a parent to adopt their own child is consistent with the values enshrined in the Charter, specifically s. 15, as it applies to same sex parents who may require international recognition as a parent, over and above the provincial recognition set out in the CLRA.
[17] There may be circumstances where the adoption of a child by their legal parent may be found to be superfluous. In those circumstances, a court may decline its discretion to approve the application. In those circumstances it may be that the parent is unable to satisfy the court that an adoption order is in the best interests of the child, because it would be unnecessary.
[18] However, in this case, the appellant has demonstrated a reasonable and supported basis on which adoption would be in the best interests of the child. If the family travel outside Canada, they face the risk that T.H.’s parentage, which is deemed by way of provincial legislation, may not be recognized in another country. Parental status through adoption is legally recognized by signatory countries to the Hague Convention. Adoptive parental status may also be recognized by non-signatory countries. I find that it is in A.A.H.’s best interests that both T.H. and A.B. be able to act within their role as the child’s parent when they travel. For example, if an urgent situation arose while abroad, T.H. may need to make important decisions as A.A.H.’s parent. An order for adoption provides further international protection for T.H.’s role as a parent.
[19] For these reasons, I find that Restoule-Mallozi J. erred in law in concluding that it is impossible for a parent to adopt their own child. I find that an interpretation of s. 199(2) that is consistent with Charter enshrined values permits a same sex parent to adopt their own child.
[20] I am also satisfied that it is in the best interests of A.A.H., that an adoption order issue pursuant to s. 199(2) of the CYFSA. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a JR against school board decisions in which the appellant "was found to have breached the TCDSB’s code of conduct (the “Code of Conduct”) during a public meeting" and was sanctioned."
Here the court considers Charter s.2(b) ['expression'] and s.2(a) ['religion'] Charter issues in an administrative context:(4) The Divisional Court did not err in finding that the Board’s Decisions balanced Mr. Del Grande’s Charter rights with its statutory mandate
[36] Mr. Del Grande argues that he merely engaged in rhetorical hyperbole at the November 2019 meeting that did not violate the Code of Conduct and that the Divisional Court erred in finding that his statements were not protected under ss. 2(a) (freedom of religion), 2(b) (freedom of expression) and 3 (democratic rights) of the Charter. I disagree. The Divisional Court balanced Mr. Del Grande’s right to free speech and freedom of religion with the Board’s statutory mandate under the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613. Mr. Del Grande’s s. 3 rights were not engaged.
[37] As stated recently in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 73, under the Doré approach, a reviewing court must:1. Determine whether a decision-maker’s decision limits relevant Charter protections; and
2. If so, examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. [38] If the decision reflects a proportionate balancing, it is reasonable.
[39] The Divisional Court found that Mr. Del Grande was not sanctioned based on his religious beliefs or for debating the merits of adding prohibited grounds of discrimination under the Code. He was sanctioned for using “extreme and derogatory rhetoric that fell below the standard of conduct required of a Trustee”, and for making remarks that “did not reflect any sincerely held religious beliefs” but rather used a “slippery slope” argument to mock individuals who seek protection from discrimination based on their gender identity and gender expression.
[40] I see no error in the Divisional Court’s analysis on this point. Mr. Del Grande’s argument on this point was rejected in Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, leave for appeal refused, [2024] S.C.C.A. No. 41041, in which publishers of anti-LGBTQ+ tracts argued that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine. As Miller J.A. eloquently stated, at para. 42 of Volpe:The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements. [41] Similarly, in this case, the offensive aspect of Mr. Del Grande’s conduct at the 2019 Board meeting was not his opposition to adding further prohibited grounds of discrimination in the Code of Conduct, but his degrading and (as he acknowledged) flippant equation of gender identity and gender expression to cannibalism, rape, and bestiality.
[42] The Divisional Court noted that the investigation report before the Board was alert to the Charter values at stake and that, prior to making the Decisions, the Trustees had lengthy written and oral submissions from Mr. Del Grande. His submissions included that a finding that he had breached the Code would violate his Charter rights. The court concluded that the Merits Decision reflected an appropriate balance between the objectives in the Education Act and Mr. Del Grande’s Charter rights:[Mr. Del Grande] made his comments in his capacity as a Trustee, in a public meeting that included at least one delegate from the LGBTQ+ community who expressed vulnerability and alienation in the Catholic school system. [Mr. Del Grande] had a duty to “represent all the citizens in the Catholic community” in Toronto and to create a “positive environment that is safe, harmonious, comfortable, inclusive and respectful.” The Board’s determination that [Mr. Del Grande] breached the Code of Conduct by engaging in extreme, disrespectful and demeaning language was reasonable. [Emphasis in original.] [43] The Divisional Court observed that the Board, which is composed of Catholic Trustees, is presumed to have expertise as to its processes and standards of behaviour, and that the Decisions are accordingly entitled to deference. As held in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at para. 89, “[t]ribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction).” The Board’s decisions are also entitled to deference because it is composed of trustees democratically elected by the community which it serves.
[44] The Divisional Court’s reasoning accords with decisions from other Canadian courts on the balance that should be struck between freedom of speech and young LGBTQ+ persons from demeaning and hateful rhetoric in schools, school boards, and post-secondary institutions: Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 43 B.C.L.R. (4th) 41, at para. 79, leave to appeal refused, [2006] S.C.C.A. No. 31088; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 98. Mr. Del Grande’s remarks at the meeting ignored the inherent dignity of LGBTQ+ individuals. As such, they are “not representative of the core values underlying s. 2(b)": Kempling, at para. 77.
[45] The Decisions do not meaningfully impair Mr. Del Grande from expressing his views or from participating in matters before the Board. The sanctions imposed on him do discourage a repetition of the form of expression he engaged in at the November 2019 meeting. They did not, however, prevent him from continuing in his functions as a trustee, including taking positions on matters before the Board. As he points out, he has since been re-elected as a TCDSB trustee.
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