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Two levels of court in Nova Scotia recently discussed the question of who constitutes a parent, for the purposes of adoption, in that province. At issue was whether the biological father of a child that had been put up for adoption should have received notice of that adoption even though he had no relationship with the mother or knowledge of the child and it was not statutorily required for him to receive that notice.
The child in question was born in March 2016. Within a few weeks after birth, the child was put up for adoption by the biological mother, who surrendered all of her parental rights to the child and signed an agreement with the Minister of Community Services. This matter came before the Supreme Court of Nova Scotia (Family Division), who raised questions about whether notice of the adoption had to be provided to the child’s biological father before the adoption proceeded. The Court also raised a number of constitutional questions.
Statutory Definition of Parent
Nova Scotia’s Child and Family Services’ Act (CFSA) s. 67(1) defines “parent” as:
(i) the mother of the child,
(ii) the father of the child where the child is a legitimate or legitimated child,
(iii) an individual having custody of the child,
(iv) an individual who, during the twelve months before proceedings for adoption are commenced, has stood in loco parentis to the child
(v) an individual who, under a written agreement or a court order, is required to provide support for the child or has a right of access to the child and has, at any time during the two years before proceedings for adoption are commenced, provided support for the child or exercised a right of access,
(vi) an individual who has acknowledged paternity of the child and who
(A) has an application before a court respecting custody, support or access for the child at the time proceedings for adoption are commenced, or
(B) has provided support for or has exercised access to the child at any time during the two years before proceedings for adoption are commenced,
but does not include a foster parent.
The mother had submitted a statutory declaration, closely mirroring the language of s.67(1), stating, among other things, that:
The father of the child has not been identified by me. Neither the father of the child nor any man claiming to be the child’s father has, to my knowledge, an application before a Court respecting custody, support or access for the child. Neither the father of the child nor any man claiming to be the child’s father has provided support for or has exercised access to the child since her birth.
Justice O’Neil of the Supreme Court of Nova Scotia noted that the mother’s “obvious objective” through filing this declaration was to establish that no one, other than herself, was the parent of the child. Despite the mother’s statutory declaration, the judge expressed concern that the adoption application had not addressed the issue of what knowledge, if any, the child’s biological father had of the proposed adoption, or even the existence of the child.
The judge’s concern was, essentially, that s. 67(1) does not automatically include a biological father within the definition of parent, unless that man is either married to the biological mother, has acknowledged his paternity, has supported the child, exercised access to the child, or acted in a parental role to the child. A mother with no connection or further relationship with the biological father has no obligation to inform that man that he has a child.
The Minister of Community Services was invited to provide input on the issue of notice to the biological father. The Minister’s position was that the biological father here was not a parent as defined by s.67(1) of the CFSA and was, therefore, not entitled to notice.
Justice O’Neil went on to issue a notice of constitutional question to the Attorney General, based on his own motion, essentially referring a number of constitutional questions to himself. This was done despite objections from both the Minister and counsel from the adoptive parents. During all of this legal back and forth, the adoption of the child was on hold.
The Constitutional Question
Justice O’Neil inquired whether s.67(1) of the CFSA treats “the mother and father of a child differently and it treats legitimate and illegitimate children differently” for purposes of adoption and whether this infringes the s.7 or s.15(1) Charter rights of the unidentified biological father of the child.
The Minister appealed Justice O’Neil’s issuance of his own notice of constitutional question, challenging the appropriateness of doing so.
The Court of Appeal Decision
Upon hearing the Minister’s appeal, the Court of Appeal granted the adoption order, and criticized Justice O’Neil’s actions, finding that he had made a judicial error in “forging ahead with a self-directed constitutional reference”, which the Court of Appeal deemed “inappropriate and ill-conceived”.
The Court of Appeal also noted that both the parents who had been waiting to adopt the child, and the child herself had suffered a patent injustice:
There is no question that in making their Application for Adoption, the [adoptive parents] complied with all of the necessary requirements. They complied with the legislative provisions. They complied with the Rules as set out by the Judges of the Supreme Court. They did everything right. Yet their requests for an adoption order made October 14, 2016, October 17, 2016 and January 10, 2017 went unanswered.
The [adoptive parents] and, more importantly, [the child], found themselves caught up in a judge-made vortex of uncertainty and delay. As the reasons above hopefully make clear, there was no good reason for the hearing judge to subject these would-be parents and their child to unnecessary turmoil. Counsel for the [adoptive parents] characterized the hearing judge’s handling of their application as like responding to “a moving target”. That is an apt description.
On the issue of whether the biological father here should have received notice of the adoption, the Court of Appeal determined, as had the Minister previously, that the father did not fall under the definition of “parent” under s.67(1) of the CFSA and, therefore, was not entitled to notice. There had been a number of earlier court decisions on this very issue that had been brought to Justice O’Neil’s attention, and which he had not referenced in his decision.
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