Re Manitoba Birth Registry # XXX

2002BCSC0320 Citation: Re Manitoba Birth Registry #95-06-008824 Date: 20020301 2002 BCSC 320 Docket: 31841 Registry: Kamloops IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE ADOPTION ACT BEING CHAPTER 5 OF R.S.B.C. 1996 AND AMENDMENTS THERETO AND IN THE MATTER OF A FEMALE INFANT MANITOBA BIRTH REGISTRY NUMBER 95-06-008824 REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HUNTER Counsel for Petitioners D.E. Haines Date and Place of Hearing/Trial: February 4, 2002 Kamloops, BC [1] The petitioners, Mr. and Mrs. "S", seek an order for adoption of the female infant pursuant to s. 35(1) of the Adoption Act, and in that regard an order dispensing with the consent of the natural father, and finally that the infant assume the surname of "S" and given names of S.A.M. [2] The circumstances are unusual. The adopting parents have known the maternal grandmother for approximately 20 years and have known the child's natural mother since she was five years of age. She apparently is in her early 20's at this time. The proposed adopting parents also know a number of the child's natural extended family, such as the mother's brother, aunts and uncles, but just recently met the mother's natural father and his wife. [3] Adding to the unusual nature of this application is the fact that the applicants were awarded custody of the child in Provincial Court in Kamloops on March 8, 2000. The child has been in the care of the applicants since February 4, 2000. Apparently the maternal grandmother living in Edmonton (the natural mother delivered this child to the maternal grandmother shortly after birth) contacted the applicants in November 1999 and asked them to consider taking the child as she could no longer care for the child. The grandmother was having financial problems and was going back to school to obtain a nursing degree and was working part-time. [4] Section 4(c) of the Adoption Act provides: 4 The following may place a child for adoption: ... (c) a birth parent or other guardian of the child, by direct placement in accordance with this Part; ... [5] "Direct placement" as defined in s. 1 of the Act: means the action of a birth parent or other guardian of a child placing the child for adoption with one or 2 adults, none of whom is a relative of the child. [6] Section 8 of the Act provides in part: 8(1) As soon as possible before a direct placement, the prospective adoptive parents must notify the director or an adoption agency, in accordance with the regulations, of their intent to receive a child in their home for adoption. (2) As soon as possible after being notified under subsection (1), the director or the adoption agency must ... (d) prepare, in accordance with the regulations, a pre-placement assessment of the prospective adoptive parents, (e) give a copy of the pre-placement assessment to the prospective adoptive parents and to the birth parent or other guardian of the child, ... [7] Section 9 of the Act provides in part: Prospective adoptive parents may receive a child by direct placement but only if, before the child is received in their home, ... (a) the birth parent or other guardian placing the child receives a copy of the pre-placement assessment prepared by the director or the adoption agency, ... [8] Section 31 of the Act provides in part: (1) At least 30 days before the date set for hearing an application for an adoption order, the applicant must give written notice of the application as follows: (a) to the director or an adoption agency, if the child was placed with the applicant by direct placement or was brought into British Columbia for adoption by a person other than a relative of the child; ... [9] Section 32 provides in part: Before an adoption order is made, the following documents must be filed with the court: ... (d) the post-placement report, if required under section 33; ... [10] Section 33 of the Act provides in part: (1) If the director of an adoption agency is given notice under section 31 or has placed the child for adoption, the director or the agency must file with the court a post-placement report that contains (a) either a recommendation that the adoption order should or should not be made or a statement that there is insufficient information to make the recommendation, and (b) the information prescribed in the regulations. ... [11] Section 35 of the Act provides in part: (1) After considering the post-placement report and other evidence filed under section 32, 33 or 34, the court may make an adoption order if it is satisfied that (a) the child has resided with the applicant for at least 6 months immediately before the date of the adoption hearing, and (b) it is in the child's best interests to be adopted by the applicant. ... [12] The legislation provides that all persons "receiving" a child for adoption by direct placement must complete both pre- and post-placements requirements. The legislation does not appear to contemplate circumstances in which the proposed adopting parents already have legal custody and guardianship of the child as is the case on this application as a result of the custody and guardianship order made in March 2000 under the Family Relations Act. In other words, the fact that the Act entrusts non-relative guardians such as the petitioners with the authority to "place" a child for adoption by direct placement but does not provide them with the ability to "receive" a child for adoption cannot be the result of legislative design. [13] Section 2 of the Act provides: The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child's best interests. It would not seem reasonable that the legislature would purposely exclude from "receiving" a child for adoption, non-relative individuals who have satisfied a court under the Family Relations Act that it is in that child's best interest for those individuals to be the custodial parents and legal guardians of the child. [14] Counsel submits with respect to the pre- and post-placement reports required under the Act where adoption is by "direct placement" that the court use its parens patriae jurisdiction to fill the legislative gap and dispense with the need for the petitioners to complete a pre- and post-placement report. [15] I am satisfied that it is in the best interest of the child to interpret the legislation to not require those reports in the circumstances. Those reports are not required in the case of a proposed adoption by "relatives" of the child and I can see no reason for a distinction. In reaching that conclusion, I have had the opportunity to consider Re British Columbia Birth Registration #78-09-024190, (1990) 66 D.L.R. (4th) 154 (S.C.). [16] There will be an order that the consent of the natural father be dispensed with. I have concluded that is appropriate in the circumstances of the natural father having never provided financial support for the child who is now five years of age and having only visited the child on one or two occasions when she was very young. [17] Accordingly there will be an order for adoption and that the child assume the surname of "S" and the given names of S.A.M. "R.B. Hunter, J." The Honourable Mr. Justice R.B. Hunter