Adoptions: To Review or Not to Review

This article was written by Robert Shawyer for The Family Way, the Canadian Bar Association’s National Family Law Section newsletter, October 2012.

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

Popular wisdom says that adoptions are final and are not subject to appeal. In fact most if not all adoption legislation across the country appears to support the proposition that adoptions are final. In Ontario for instance s. 157 of the Child and Family Services Act [1] 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.”

In principle 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 can lead to abuses by even the best intentioned of people as is becoming abundantly clear as more and more people come forward about past adoption practices relating to unwed parents. It is this author’s position that adoptions in certain instances should be reviewable and in fact are reviewable by a court of competent jurisdiction.

Arguably on its face Ontario’s adoption legislation appears to be a complete bar to an appeal of an adoption once it is ordered by a court and therefore a good example to use. So long as an adoption order is validily granted a person should not be allowed the right to appeal an adoption; however if a person questioning an adoption order can present evidence that the adoption order was not validily granted they should be allowed to seek a review of an adoption.

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 Services[2] 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 instance, 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 of the ways an adoption order could be defective is if the consent of the biological parent(s) is invalid[4] by virtue of the fact the consent was obtained by coercion or the person signing the consent did not have proper independent legal advice. Either of these scenarios and potentially others arguably are 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 parent(s) consent was invalid, for example, that they inadvertently misapplied the law and therefore their 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 aside. Even if they are not appealed, they are still subject to review and may be set aside.[5] Orders are subject to review even after the appeal period has expired if they are a nullity. An order will be found to be a nullity against a person according to Supreme Court of Canada when one of the foundations of the order is defective.[6]

Where the legislation, such as is the case in Ontario, does not allow for the review of an adoption order based on a nullity, a litigant I would submit can petition a court on the basis of its inherent parens patriae jurisdiction. The basis for the Court’s parens patriae jurisdiction arises from the Supreme Court’s decision in Re Eve [7]. Courts since that decision was released in 1986 have been willing to use their jurisdiction, however sparingly, in cases of deceit [8] 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 child [9].

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 “gap” or a “gap” in the upbringing of a child never existed the adoption system cannot and should not be utilized. While not everyone may agree with this position it has found support in the courts [10]. 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.

For more information, please contact:

Robert Shawyer, M.A., LL.B.
Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON  M6A 3B2
416-398-4044 ext 5
[email protected]

[1] R.S.O. 1990, Chapter C.11.
[2] {2007} O.J. No. 2135
[3] 2010 ONSC 5481, [2011] W.D.F.L. 323, [2011] W.D.F.L. 1453, 98 R.F.L. (6th) 434
[4] In 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.
[5] R v. Villa [1998] O.J. 10 (H.C.J.) and R v. Wilson [1983] 2 S.C.R. 594
[6] CAS Toronto v. Lyttle [1973] S.C.R. 568
[7] [1986] 2S.C.R. 388
[8] A.L. v. S.M. [2009] O.J. 2972
[9] A.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.
[10] See 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”