Focus On

ADOPTION - Persons who may adopt and be adopted - Consent of natural parents - Practice and procedure - General principles - Legislation - Effect - Retroactive effect

Thursday, December 14, 2017 @ 8:49 AM  


Lexis Advance® Quicklaw®
Appeal by the British Columbia Director of Adoption from a judicial review judgment in favour of the respondent, the biological father of the subject child. Immediately following the subject child's birth, the birth mother signed a pre-placement agreement transferring care and custody of the child to the British Columbia Director of Adoption. One week later, the mother swore an affidavit consenting to the child's adoption. The respondent was not named on the child's birth certificate, as his paternity was not confirmed until subsequent DNA testing. The Director provided the respondent with notice of intent of prospective adoption with an Alberta family with whom the child had a half-sibling. The respondent commenced an action seeking custody and guardianship. With the action pending, the respondent sought judicial review of the Director's placement decision with related relief. The reviewing court held that the placement of the child for adoption in Alberta was ultra vires the geographic limits of the Director's authority granted under s. 5(2) of the British Columbia Adoption Act. The Director appealed. The Director submitted that the reviewing court's order was no longer sustainable due to recent amendments contemplating adoptive placements with parents residing outside of British Columbia and retroactively authorizing all prior out-of-province placements.

HELD: Appeal allowed. It was not open to the Court to refuse to apply the recent amendments on the basis of unfairness. No constitutional challenge to the amendments were raised. In light of the amendments, the Director's placement of the subject child with prospective adoptive parents in Alberta was within her authority. The reviewing court's order was set aside and the respondent's petition was dismissed.

A.A.A.M. v. British Columbia (Director of Adoption), [2017] B.C.J. No. 2417, British Columbia Court of Appeal, M.E. Saunders, S.D. Frankel and D.F. Tysoe JJ.A., November 10, 2017. Digest No. TLD-December112017007