Adoptions: To review or not to review

The issue of adoption has recently made headlines across the country. In Prince Edward Island and now in many other provinces, questions are being raised as to whether unwed parents were coerced either psychologically and/or physically into giving up their children for adoption. The accounts of those who are coming forward, if true, raise many troubling questions. Among them is whether adoptions, once granted through a court order, can be reviewed by a court of competent jurisdiction.

Most, if not all, adoption legislation across the country appears to support the proposition that adoptions are not subject to appeal. In Ontario, for instance, s. 157 of the Child and Family Services Act¹ states that adoptions are “final and irrevocable,…,and shall not be questioned or reviewed in any court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus or application for judicial review.”

The objective of finality in adoptions is a laudable public policy goal and one that as a general principle should be supported, especially if it is done in the best interests of child. However, complete finality, however well-intentioned, can lead to abuse. This is becoming abundantly clear as more and more people come forward to complain about past adoption practices relating to unwed parents. It is this author’s position that adoptions in certain instances should be, and in fact are, reviewable.

On its face, Ontario’s legislation appears to be a complete bar to any review or appeal of an adoption once it is ordered by a court. So long as an adoption order is validly granted, that should be the case; however, if a person can present evidence that the order was not validly granted, they should be allowed to seek a review.

“Complete finality,however well-intentioned, can lead to abuse. This is becoming abundantly clear as more and more people come forward to complain about passt adoption practices relating to unwed parents.”

In a couple of instances, the courts have tacitly recognized that adoptions are reviewable. For instance, in the case of A.M. v. Chatham Kent Integrated Children’s Services², the Ontario Court of Appeal in a unanimous opinion “refrain(ed) from determining whether a motion to set aside could succeed in different circumstances.” In another case, A.M. v. P. (C.)³, the court allowed the biological mother of an adopted child to seek leave to appeal the adoption.

If the courts recognize that adoptions are reviewable, on what basis are they reviewable? I would argue that they are reviewable if the adoption order is in any way significantly defective. One way the order could be defective is if the consent of the biological parent(s) is invalid⁴ by virtue of the fact it was obtained by coercion, or where the person signing the consent did not have proper independent legal advice. Either of these scenarios and potentially others may constitute grounds to attack an adoption order as defective. The argument can be made that since the judge signing the adoption order was not aware that the biological parents’ consent was invalid, then he or she inadvertently misapplied the law and, therefore, his or her order should be reviewed. In effect, one is arguing that the judge’s order is a nullity as against the person who is seeking to set aside the order.

Court orders are presumptively valid and must be treated as valid until set aside⁵. But even if they are not appealed, they are still subject to review and may be set aside. Indeed, if they are a nullity, orders are subject to review even after the appeal period has expired. According to the Supreme Court of Canada, an order will be found to be a nullity when one of the foundations of the order is defective⁶

Where the legislation, such as is the case in Ontario, does not allow for the review of an adoption order based on a nullity, I would submit that a litigant can petition a court on the basis of its inherent parens patriae jurisdiction. The basis for this jurisdiction arises from the Supreme Court’s decision in Re Eve⁷. Since that decision was released in 1986, courts have been willing to use their jurisdiction, however sparingly, in cases of deceit⁸ and in cases where the court is being asked to exercise it in the “best interest” of or for the benefit or welfare of a child⁹

A person should be able to review an adoption order if the circumstances are such that a reasonable person would conclude that the adoption order is in some way deficient. After all, the adoption process can and should be utilized in only situations where there is a “gap” in the care of a child and it is in the child’s best interest to be adopted. Where there is no such “gap”, the adoption system should not be utilized. While not everyone may agree with this position, it has found support in the courts¹⁰. At the very least, abiding by this principle and allowing parents to potentially challenge an adoption may assist in preventing further abuses such as those that are now just coming to the public’s attention.

• ¹ R.S.O. 1990, Chapter C.11.
• ²{2007} O.J. No. 2135
• ³2010 ONSC 5481, [2011] W.D.F.L. 323, [2011] W.D.F.L. 1453, 98 R.F.L. (6th) 434
• ⁴In N.D. –F. V. JH.D. [2007] O.J. No. 495 at paragraph 24 discusses the need for valid parental consent before an adoption order can be made.
• ⁵R v. Villa [1998] O.J. 10 (H.C.J.) and R v. Wilson [1983] 2 S.C.R. 594
• ⁶CAS Toronto v. Lyttle [1973] S.C.R. 568
• ⁷[1986] 2S.C.R. 388
• ⁸A.L. v. S.M. [2009] O.J. 2972
• ⁹A.A. v. B.B. [2007] OJ 2 (C.A.); C.R. v. Children’s Aid Society of Hamilton, [2004] O.J. No. 3301 (S.C.J.); and Supra at footnote 6.
• ¹⁰See Katarynych, prov. J’s decision in “THE MATTER OF a proposed adoption of A.L.K.Q ., by E.K. under Part VII of the Child and Family Services Act, R.S.O. 1990, c. C-11 [1996] O.J. No. 353”

Further Action: Please go to Client Lounge