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ADOPTION - Practice and procedure - Discovery - Evidence - Appeals and judicial review - Of interim or interlocutory orders

Monday, April 10, 2017 @ 10:53 AM  


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Appeal by AAAM from pre-trial orders refusing an interprovincial subpoena for two witnesses, and refusing further discovery examination of the Director of Adoption. The appellant was a citizen of Saudi Arabia who resided in Canada on an expired student visa. The subject child was born in 2009. The mother denied the appellant's paternity, indicated on the birth registration that the father was unknown, and signed the necessary forms for placement of the child for adoption. Within one month, DNA testing established the appellant's parentage. The appellant subsequently opposed a prospective adoption. The child was placed with the prospective adoptive parents in Alberta, who were already guardians of the child's half-sister. In 2011, the appellant filed a claim for custody and guardianship. Following a trial and appeal, the appellant obtained co-guardianship, subject to agreement with the Director on allocation and definition of the appellant's rights consistent with the child's best interests. The parties were unable to reach agreement and the Director sought directions pursuant to s. 45 of the Family Law Act. In 2016, a judge declared the child's placement for adoption outside of British Columbia ultra vires the Director's statutory authority. In anticipation of the s. 45 proceedings, the appellant sought attendance of the prospective adoptive parents by way of interprovincial subpoena and further examination of the Director. The requests were refused. AAAM appealed.

HELD: Appeal dismissed. At the present stage of the proceeding, the appellant and the Director had co-guardianship of the child. The judge's denial of a subpoena in respect of the prospective adoptive parents was consistent with the evidentiary requirements for a s. 45 Family Law Act hearing, and did not result from an error in exercising discretion under s. 5 of the Subpoena (Interprovincial) Act. The denial would not limit the Court's task in defining each guardian's rights and obligations, having regard for the best interests of the child. No basis for appellate interference was established with respect to the refusal of additional examination of the Director, as there was no indication of uncovered areas with respect to the initial examination.

A.A.A.M. v. British Columbia (Director of Adoption), [2017] B.C.J. No. 481, British Columbia Court of Appeal, M.E. Saunders, E.A. Bennett and S. Stromberg-Stein JJ.A., March 1, 2017. Digest No. TLD-Apr102017004