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ADOPTION - Consent of natural parents - Practice and procedure - General principles - Legislation - Constitutional issues

Thursday, September 14, 2017 @ 11:40 AM  

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Appeal by the Minister of Community Services (Minister) and the adoptive parents from a decision of the hearing judge referring a number of constitutional questions to himself for determination in an uncontested application for adoption. The child was born in March 2016 and was placed by her biological mother in the Minister’s care. The Minister placed the child with a couple for the purpose of adoption. The biological mother was notified of that placement. The couple then filed an application for adoption with the Minister’s consent. Based on the biological mother’s statutory declaration, the child’s biological father did not fall within the definition of “parent” under the relevant provisions of the Children and Family Services Act (CFSA). The biological mother was the only parent that entered into the adoption agreement and the only parent required to be provided with notice when the child was placed in a home for the purpose of adoption. The application judge refused to grant the adoption due to concerns regarding the lack of notice given to the biological father. After hearing submissions on the issue, the judge made the constitutional reference.

HELD: Appeal allowed. The hearing judge erred in law and had caused a patent injustice to the adoptive parents and the child. The child was a child in care and, based on s. 74 of the CFSA, the only consent required in relation to the adoption application was that of the Minister which had been provided. According to the clear wording of the legislation, neither a biological mother nor biological father of a “child in care” was required to give consent to an adoption. The hearing judge erred in failing to follow binding authority from the appeal court that biological fathers who did not fall within the definition of “parent” in s. 67 of the CFSA were not entitled to notice, nor was their consent required for the purposes of adoption. He also erred in giving no consideration to whether the issues being raised in the reference were moot, as argued by the parties before him, and in failing to consider whether the case before him was suitable for the type of Charter litigation he was initiating. There was no reason articulated by the hearing judge why, in the absence of a hint of a live dispute, he deemed it appropriate to pose a reference to himself questioning the constitutionality of the statutory provisions deemed appropriate by the Legislature. In the very exceptional circumstances of this matter, it was appropriate for the appeal not only to be allowed, but that an order for adoption to be issued forthwith. The appellants’ application was in appropriate form and met all the requirements imposed by the Legislature and the Supreme Court. There had been a patent injustice. To send the matter back for another determination would only add to the delay, expense and uncertainty already experienced by the appellants.

Nova Scotia (Minister of Community Services) v. Nova Scotia (Attorney General), [2017] N.S.J. No. 333, Nova Scotia Court of Appeal, D.R. Beveridge, D.P.S. Farrar and C.A. Bourgeois JJ.A., August 23, 2017. Digest No. TLD-Sept112017007