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Who’s a parent? A Nova Scotia adoption case with constitutional implications

Can a court issue a notice of constitutional question on its own motion?

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Can a court issue a notice of constitutional question on its own motion

That question is currently before the Nova Scotia Court of Appeal in an adoption case that has implications for women’s reproductive choices.

The court heard an appeal on March 30, 2017 from the decision of a Supreme Court Family Division judge to address whether a biological father – unidentified in the case at hand – has the constitutional right to be notified of an application to put a child up for adoption. Background information is reported in an earlier decision, but identifying details are subject to a publication ban under the province’s Children and Family Services Act.

Under that law, a biological mother signed an agreement with the Minister of Community Services to put her child up for adoption. The prospective adoptive parents then filed a Notice of Proposed Adoption. This is a routine proceeding, and all involved likely expected the court to issue the adoption order without question. It didn’t turn out that way. The court was concerned that the biological father was not involved.

In her application materials, the biological mother stated: “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.”

That’s the only information about the biological father in the public record.

The biological mother’s declaration did not satisfy Associate Chief Justice Lawrence O’Neil when the adoption materials came before him last year. He expressed concern that no notice had been provided to the biological father, even though the Children and Family Services Act did not mandate it.

This is because the statute does not automatically include a biological father in the definition of “parent.” Something more is required (e.g. he is married to the biological mother; he has acted in a parental capacity for the child; or he has “acknowledged paternity” and has supported or exercised access with the child).

Essentially, the statutory definition of “parent” allows a woman to choose to carry a pregnancy and enter into an adoption agreement after she gives birth, without having to inform the biological father.

In a 1992 decision, the Court of Appeal noted that the legislature “could be taken to have deliberately excluded” biological fathers who were not otherwise involved with the child “from a right to participate in the adoption process.”

Although he acknowledged the 1992 ruling, Justice O’Neil asked the Minister of Community Services to provide submissions on the “parent” issue. Counsel confirmed the Minister’s position “that the biological father was not a parent as defined” in the Act, and “therefore not entitled to notice.” Justice O’Neil then issued a notice of constitutional question to the Attorney General on his own motion, despite counsel for the Minister and counsel for the adoptive parents asking him not to.

The constitutional question is whether section 67 of the Children and Family Services Act, which according to Justice O’Neil “treats the mother and father of a child differently” and “legitimate and illegitimate children differently,” infringes the section 7 or section 15(1) Charter rights of the unidentified biological father or the child.

The Minister appealed, and the Court of Appeal granted a stay of proceedings pending the appeal (which Justice O’Neil wrote about in an “addendum” to his NCQ decision).

The propriety of Justice O’Neil issuing his own NCQ is now before the Court of Appeal. Notably, the Court of Appeal granted the adoption order from the bench at the March 30 hearing, with reasons on the NCQ issue to follow. Those reasons will likely have implications beyond this case, and beyond the family law context.

Hopefully, the Court of Appeal will reiterate the policy behind the statute’s definition of “parent,” which furthers the feminist goal of freedom of choice for women and mothers.