K. v. D.

K. v. D.

Preliminary motion to dismiss denied: a consent to adoption signed when no adoption is contemplated does not extinguish the child support obligation; a consent to adoption only suspends obligations in the context of a contemplated adoption and the adoption order is required to terminate obligations (retroactive effect discretionary); a unilateral or generic adoption consent is not an adoption agreement under s.68 and cannot oust court jurisdiction; consent orders cannot lawfully bargain away a child’s right to support and provisions purporting to permanently extinguish parental rights are unenforceable; res judicata does not bar the application.

Citation
2004 NSSF 115
Parties
Applicant (mother): J.K.; Respondent (alleged Father): S.M.D.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
17 December 2004
Procedural Posture
Application for Child Maintenance, Custody and Access Under the Maintenance and Custody Act / Preliminary Motion to Dismiss
Outcome
Preliminary motion to dismiss denied; mother’s application for child support permitted to proceed to organizational pre-trial.
Legal Topics
Consent to Adoption, Termination of Parental Rights, Jurisdiction of Consent Orders, Retroactivity of Maintenance, Variation and Setting Aside of Consent Orders, Res Judicata
Source Language
English
Family Law Child Support Adoption Law Procedural Law Consent to Adoption Termination of Parental Rights Jurisdiction of Consent Orders Retroactivity of Maintenance +2 more

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Parties

J.K.

Applicant (mother)

S.M.D.

Respondent (alleged Father)

Procedural Posture

Application for Child Maintenance, Custody and Access Under the Maintenance and Custody Act / Preliminary Motion to Dismiss

Legal Issues

  1. 1 Whether a signed consent to adoption terminates the child support obligation absent an actual adoption being contemplated or completed
  2. 2 Whether the consent document can be construed as an adoption agreement that ousts court jurisdiction under the Family Maintenance Act
  3. 3 Whether a prior consent order permanently terminated the respondent’s parental rights and obligations

Ratio Decidendi

Preliminary motion to dismiss denied: a consent to adoption signed when no adoption is contemplated does not extinguish the child support obligation; a consent to adoption only suspends obligations in the context of a contemplated adoption and the adoption order is required to terminate obligations (retroactive effect discretionary); a unilateral or generic adoption consent is not an adoption agreement under s.68 and cannot oust court jurisdiction; consent orders cannot lawfully bargain away a child’s right to support and provisions purporting to permanently extinguish parental rights are unenforceable; res judicata does not bar the application.

Court Disposition

Preliminary motion to dismiss denied; mother’s application for child support permitted to proceed to organizational pre-trial.

Orders

  • Preliminary motion to dismiss is dismissed.
  • Matter set down for organizational pre-trial to organize hearing dates.