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ADOPTION - Age and suitability of applicants - Grounds for refusal

Monday, October 19, 2020 @ 8:25 AM  

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Appeal by prospective adoptive parents from a decision dismissing their application for judicial review of the Minister’s decision that the appellants did not meet the criteria to be approved as prospective adopting parents. The appellants applied to the Minister to adopt a child who was in their care since birth under a foster care agreement. Once it was discovered the foster mother had been convicted of fraud, the Minister advised them they did not meet the criteria to be approved as prospective adopting parents. One of the criteria prescribed in s. 3(1)(e.6) of the Adoptive Applicant Regulation was that neither the applicant nor a member of the applicant’s household had been convicted of an Criminal Code offence set out in Schedule A. Fraud was one of the specified offences. The appellants argued the application judge misinterpreted s. 3(1)(e.6) to be a mandatory condition, which, if not satisfied, barred the Minister from determining an applicant to be suitable. Alternatively, the appellants argued the Regulation was invalid, being ultra vires the authority of the Lieutenant-Governor in Council because it conflicted with the dominant obligation under the Family Services Act to put above all other circumstances the best interests of the child.

HELD: Appeal dismissed. The application judge did not err in her determination that the Minister had no choice but to conclude she could not proceed with the appellants’ application once it was established they did not meet the criteria under s. 3(1)(e.6) of the Regulation. The words of s. 3(1)(e.6) clearly indicated an intent to exclude an applicant for adoption who had been convicted of a specified offence. This was reinforced by reading the other criteria and considering s. 3(1) as a whole. Interpreting the criteria as requirements was consistent with s. 67(2) of the Family Services Act and the scheme and object of the Act. The Legislature gave the power to establish criteria, by regulation, to determine who were suitable prospective adopting parents. Interpreting s. 3(1)(e.6) as a requirement that must be satisfied in order for an applicant to be determined suitable under s. 67(2) was not inconsistent with an obligation under the Act to put the best interests of a child first. The criteria established by Regulation did not exclude the best interests of children but embodied the best interests of the child consistently with the scheme of the Act and the intention of the Legislature. The Regulation and s. 3(1)(e.6) were not ultra vires. Section 3(1)(e.6) represented a specific criterion established under s. 143 of the Act to protect the best interests of children to be adopted. The provisions were neither inconsistent nor incompatible.

N.C. v. New Brunswick (Minister of Social Development), [2020] N.B.J. No. 207, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and R.T. French JJ.A., September 10, 2020. Digest No. TLD-October192020001