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Minors—Adoption—Writ of habeas corpus quashed—Custody of natural child given to respondents for adoption purposes—Validity of consent—Withdrawal of consent—Civil Code, art. 245—Code of Civil Procedure, arts. 851, 855—Adoption Act, R.S.Q. 1977, c. A-7, ss. 1(b), 1(d), 6(a), 15, 16, 17—The Child Welfare Act, R.S.O. 1970, c. 64, s. 73, am. by 1971 (Ont.), vol. 2, c. 98, s. 4(1) and 1975 (Ont.), c. 1, s.31.

Conflict of laws—Appellants, the natural parents, residing in Ontario—Respondents, with custody, domiciled in Quebec—Civil Code, art. 6(4)—Adoption Act, R.S.Q. 1977, c. A-7, ss. 1(b), 1(d), 6(a), 15, 16, 17—The Child Welfare Act, R.S.O. 1970, c. 64, s. 73, am. by 1971 (Ont.), vol. 2, c. 98, s. 4(1) and 1975 (Ont.), c. 1, s.31.

The female appellant, a resident of Ontario, discovered that she was pregnant. She told the male appellant, the father, who was also a resident of Ontario. On November 1, 1978, appellants each signed in Ontario a consent to their unborn child being adopted by respondents, a couple domiciled in Quebec. The child was born on December 7, 1978 and two days later was given into the care of respondents without further formalities. Subsequently, appellants regretted their decision. At the end of April 1979, they asked to have their child returned, and this was refused by respondents. Appellants obtained a writ of habeas corpus against respondents.

The Superior Court quashed the writ of habeas corpus and the decision of the Court of Appeal upheld this judgment.

Held: The appeal should be dismissed.

The Superior Court judge only had before him a writ of habeas corpus. He was not required to decide on the question of the custody or adoption of the child, which is a matter for the Youth Court. The question became as

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follows: “Were respondents justified under the law in refusing to return the child to appellants?”

This case raises a question of conflict of laws. The child must be one who may be adopted in light of the substantive conditions provided in the Ontario and Quebec statutes, since, according to art. 6(4) of the Civil Code, the Court must apply cumulatively the laws of the domicile of the adopting party, the party adopted and the parents.

With regard to the laws of Quebec, ss. 15 and 16 of the Adoption Act were complied with. The notice was given to the Minister and respondents took the child two days after its birth showing at that time that they wished to adopt it. The placing is therefore valid. Since neither parent in fact assumed care of the child, under para. 6(a) of the Adoption Act the consent of either of them sufficed, and this was given on November 1, 1978. In view of the existence and the validity of the consent on December 9, 1978, the adoption of the child was allowed at that date.

With regard to the laws of Ontario, although the consent of the female appellant which was given prior to the birth is not valid, in view of subs. 73(2) of The Child Welfare Act, the Ontario Court has the power under subs. 73(5) and (6) of the Act to grant an adoption in the interests of the child, despite the absence of consent by the mother. On December 9, 1978, therefore, adoption of the child was allowed by the laws of Ontario.

As the child was capable of being adopted, the Youth Court has exclusive jurisdiction to rule on the custody of the child and, in due course, on its adoption keeping in mind the laws of Quebec and Ontario.

Stevenson v. Florant, [1925] S.C.R. 532, affirmed by [1927] A.C. 211; Marshall v. Fournelle, [1927] S.C.R. 48, affirming (1926), 40 Q.B. 391; Kivenko v. Yagod, [1928] S.C.R. 421, affirming (1928), 44 Q.B. 330; Dugal v. Lefebvre, [1934] S.C.R. 501; Cheyne v. Cheyne, [1977] C.A. 319, referred to.

APPEAL from a judgment of the Court of Appeal for Quebec[1], affirming the judgment of the Superior Court quashing a writ of habeas corpus. Appeal dismissed.

Pierre Fournier and David McAusland, for the appellants.

Pierre Tessier and Marie St-Pierre, for the respondents.

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English version of the judgment of the Court delivered by

LAMER J.—This appeal is from a decision of the Court of Appeal of Quebec, which upheld the judgment of a judge of the Superior Court for the Judicial District of Terrebonne, quashing a writ of habeas corpus. Appellants obtained the writ against respondents on the basis of the following facts (these facts are submitted to this Court by consent of the parties, and are those which were submitted to the Court of Appeal):

[TRANSLATION] During the summer of 1978, the female appellant, a resident of Ontario, learned that she was pregnant and told the male appellant, the father, who was also a resident of Ontario.

She did not inform her parents at that time. She went to see Dr. Thériault, her family doctor, in Hawkesbury, and he examined her and confirmed her condition. Appellants discussed the future of their child and their own future.

Dr. Thériault told them that he knew of a couple who might be interested in adopting a child.

At Dr. Thériault’s suggestion, appellants considered the adoption, discussed it between themselves and concluded that it was best if the child was given to a family for adoption.

Respondents were the couple mentioned by Dr. Thériault. At a subsequent meeting Dr. Thériault introduced them to appellants, and the four of them discussed the matter.

In the end, on November 1, 1978, appellants each signed a document which on its face was a consent to their unborn child being adopted by respondents (Exhibits I-1 and I-2). These documents were signed in Ontario.

The said minor child was born on December 7, 1978 at the General Hospital in Hawkesbury, Ontario. Two days after her birth, the child was released from the hospital by Dr. Thériault in care of the respondents, who took it to their home at Grenville, Quebec; the normal procedure of the hospital, according to testimony from a member of its board of directors, was to have the mother sign a consent to the child being given into the care of someone other than the mother, but this was not done.

Appellants never saw their child.

The female appellant stated that, after the birth, she still wanted to have her child with her, and that this

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feeling increased with time, but she, the male appellant and her mother were the only ones who knew of this and they did not know what to do.

Finally, after four months, the female appellant asked one of her sisters with whom she was living for help, and appellants subsequently contacted a lawyer in Ontario.

Late in April 1979, respondents learned that appellants were asking for their child to be returned, but this request was refused. On May 30, 1979 respondents filed a motion for adoption in the Youth Court for the District of Terrebonne.

At the hearing, the Court was told that an application for custody of the child was submitted by appellants to the Youth Court, and that this was still pending. Respondents persist in refusing to give up the child.

The Superior Court judge and a majority of the judges on the Court of Appeal held that a decision on custody of this child was a matter for the Youth Court, not the Superior Court.

In my view they are correct.

It is important at the outset to define the limits of the discussion. The Superior Court judge had not to decide the child’s adoption nor, as will be seen, its custody. It should also be noted that the Superior Court was not exercising a power of supervision and control over the Youth Court by means of evocation, as a result of the Youth Court usurping jurisdiction over a child who was not within its jurisdiction, or by its subjecting the child’s fate to statutes which allegedly did not apply to it, and thereby assuming a jurisdiction with which it was not vested. The Superior Court judge had before him a writ of habeas corpus, which had been issued and was subsequently brought before him in accordance, inter alia, with the following sections of the Code of Civil Procedure:

851. Any person who is confined or otherwise restrained of his liberty, except under an order in civil matters granted by a court or a judge having jurisdiction, or for some criminal or supposed criminal matter, or any other person on his behalf, may apply to a judge of the Superior Court to obtain a writ of habeas corpus

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ordering the person under whose custody he is detained to bring him forthwith before a judge of the court and to show the cause of his detention, so that it may be decided whether such detention is justified.

The demand is made by motion supported by an affidavit affirming the truth of the facts on which it is based. 1965 (1st Sess.), c. 80, s. 851.

855. The judge before whom the return is made must proceed, as soon as possible, to examine into the truth of the facts alleged. He may allow the allegations of the return to be contested in writing, authorize such written proceedings as he considers appropriate, and proceed himself to the trial of the issues or refer the case to the court. He may also admit to bail the person confined, upon security being given that he will appear at the trial and will obey the orders which may be given to him. 1965 (1st Sess.), c. 80, s. 855.

The procedure chosen by appellants, when applied to a dispute surrounding a child’s custody (see Stevenson v. Florant[2], at pp. 538 et seq; Marshall v. Fournelle[3]; Kivenko v. Yagod[4]; Dugal v. Lefebvre[5]; Cheyne v. Cheyne[6]) and given the circumstances peculiar to the case at bar, required and limited the Superior Court judge to deciding the following question:

Were respondents justified under the law in refusing to return the child to appellants?

Article 245 of the Civil Code provides:

Art. 245. The person having parental authority may delegate the custody, education and supervision of the child. Such delegation may be revoked at any time.

At the time the writ came before the Superior Court judge for consideration it was clear that, even assuming that the two natural parents had validly consented to delegating custody of their child to respondents, they no longer consented to do so; it was thus necessary for respondents to call in aid the application of some statute other than the Civil Code to justify their persistence in refusing.

They in fact relied on the Quebec Adoption Act, R.S.Q. 1977, c. A-7, as their justification, and as a basis for arguing, inter alia, that the jurisdiction to

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decide the child’s future as to custody as well as to adoption lay exclusively with the Youth Court. In my view they were correct, and I consider that this conclusion is supported by the application of certain provisions of the Quebec Adoption Act, including firstly one paragraph of s. 17:

17. From the date on which a child is placed for adoption in accordance with this Division, his father, mother, ascendants or tutor shall not obtain the custody of the child without the authorization of the court.

The court referred to in s. 17 is defined in s. 1(b) of the Act as the Social Welfare Court, now the Youth Court. (The constitutionality of s. 17 of this Act was not disputed.)

A child is placed for adoption when, in addition to certain conditions which are not at issue here, there is compliance with those set out in s. 16 of this Act (as that section read at the time the child was placed)[7]:

16. A child whose adoption is permitted under this act may be placed for adoption by a person other than a recognized adoption society, provided that notice thereof is given to the Minister.

Nevertheless, failure to give such notice shall not prevent the court from granting the adoption later, provided that a written report by a recognized adoption society establishes to the satisfaction of the court that no serious disadvantage has resulted therefrom.

The child must therefore be one whom the Quebec Adoption Act allows to be adopted; and there must be a notice to the Minister of Social Affairs, R.S.Q. 1977, c. A-7, s. 1(d). The effects of such a placing must therefore be looked at more closely.

In general, the law imposes on the father and mother of a “natural” child a duty to maintain and bring up the child (art. 240 C.C.). They exercise parental authority. The law allows them to delegate the “custody, education and supervision” of

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their child, but confers on them a right to revoke this delegation at any time. In my opinion, unless a statute other than the Civil Code applies, respondents would have no choice but to comply with appellants’ request and return the child to its parents, and it would be for the Superior Court to so order under the circumstances. But as a result of the placing, if that placing is valid under the applicable statute, such is no longer the case.

Indeed, the placing has a variety of consequences. The first of these is a transfer to other persons of the chief attributes of parental authority, and, so far as the child is concerned of filiation; in this respect the effects of the placing do not differ from a delegation contemplated by art. 245 of the Civil Code.

The second consequence is that as a result of s. 17 of the Adoption Act, the placing confers jurisdiction to the Youth Court, so that henceforth it is this Court, and no longer the Superior Court, that one must go to for the enforcement of rights pertaining to the custody of the child. Furthermore, if, as in the case at bar, the placing is the result of a consent by the parents, it has the effect—and this is its most important consequence—of depriving the parents of their right to terminate at any time, as provided in the Civil Code, the delegation made by them of their parental authority, and transfers that right to the Youth Court. Whereas the Superior Court in a matter involving a simple delegation would merely rule on the existence of a revocation, and enforce it if it was proven to exist, the Youth Court is given by the legislator a right not to enforce the revocation and to leave the child with the persons with whom it has been placed.

The placing accordingly has the effect not only of transferring to other persons the chief attributes of parental authority, but also of thereafter transferring to the Youth Court, for all practical purposes, the right to revoke the delegation.

As a result the placing alters the inter-relationships of parents, persons adopting and of course of the children themselves such that the placing affects the status of each of them. Paragraph 4 of art. 6 of the Civil Code provides:

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An inhabitant of Lower Canada, so long as he retains his domicile therein, is governed, even when absent, by its laws respecting the status and capacity of persons; but these laws do not apply to persons domiciled out of Lower Canada, who, as to their status and capacity, remain subject to the laws of their country.

Applying this article to the case at bar, the determination of the question whether a child is one who may be adopted must therefore be made as regards to the laws of the domicile. This leads to a problem which is not resolved by the Code: whose law of domicile applies?—that of the child, that of its parents, or that of the persons seeking to adopt it and to whom the parents have given it?

In the opinion of Mr. Albert Mayrand (now a judge of the Court of Appeal of Quebec, while he was a professor in the Faculty of Law of the University of Montreal, in a study titled “Adoption et successibilité” (1959) 19 R. du B. 409, at p. 464,) in adoption matters, conflicts of law as to the substantive conditions of the adoption must be resolved by the cumulative application of the law of the adopting party and that of the party adopted, as follows:

[TRANSLATION] The Court may in fact grant the adoption only if the law of the adopting party and that of the party adopted are both observed. As Battifol points out, it is not a matter of applying to each party his own personal law; rather, there must be a cumulative application of all the substantive conditions of both laws. It thus becomes much more difficult to obtain an adoption; on the other hand, there is the advantage that an adoption infringing the law of the party adopted or that of the adopting party will not be granted. This solution is followed by the majority of French writers, who can cite some decisions to this effect.

In accordance with this solution to the extent that the case is a contested one (but without in so doing making any ruling here as to other cases), I would consider however that if the parents come forward and contest the adoption, the laws of their domicile, if their domicile is different from that of the child, must be added to the cumulation.

In the case at bar, the Court must examine whether the child is one who may be adopted in

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light of the substantive conditions provided both in the Ontario and Quebec statutes. If it is, that is if the substantive condition necessary for the existence of a placing situation has been met, it will then be necessary to verify the validity of the formal condition of that placing, which is the notice to the Minister, but only with respect to Quebec law.

THE CHILD IS ONE WHO MAY BE ADOPTED UNDER QUEBEC LAW.

The case before the Court is covered by s. 6(a) of the Adoption Act:

6. A natural child who is a minor may be adopted only in the following cases:

(a) with the consent of the father and mother if they both actually assume the care, maintenance or education of the child; otherwise with the consent of that parent who actually assumes his care, maintenance or education, or with the consent of either in other cases;

Care must be taken not to confuse consent for adoption purposes, which is necessary if the adoption is to be effectively granted, with that which is required for a placing. The consent to adoption is of course in either case subject to the same conditions of validity, but with the distinction that validity of the consent to a placing must, when it is necessary, as in the case at bar, to determine the competent court and because the placing itself confers jurisdiction, be examined at the time when the other conditions, on which the validity of the placing is dependent, have been met.

These other conditions are: the notice provided for in s. 16, referred to earlier, and those in s. 15:

15. No child shall be placed for adoption except with a person who wishes to adopt him and who may adopt him under this Act.

As noted above, there is no question as to respondents’ wish to adopt the child or the fact that they are capable of adopting under the Act.

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A notice was in fact given to the Minister on November 9, 1978 by W.M.C. Steeves, respondents’ counsel.

[TRANSLATION]                                                                                 November 9, 1978

REGISTERED MAIL

Minister of Family and
   Social Welfare
Parliament Buildings
Government of Quebec
Quebec City, Quebec

Dear Sir:

RE:       JOSEPH & DIANE GALIPEAU ADOPTION ACT

1969 c. 64 s. 16
MY FILE: 7528

 

On November 1, 1978, Mr. Michel Paquette of Vankleek Hill, Ontario and Miss Madeline Brabant of Vankleek Hill, Ontario gave written permission to Mr. and Mrs. Joseph Galipeau of R.R. #1, Grenville, Quebec to adopt their child.

This notice is given to you pursuant to s. 16 of the Adoption Act.

Yours truly,

W.M.C. STEEVES

WMCS/sw

cc: Mr. and Mrs. J. Galipeau

Though it was given before the child was born, this notice appears to me to meet the requirements of the law. Indeed, the validity of that notice depended on the occurrence of two events, namely the birth of the child and its coming to respondents’ home in Quebec. The first of these two events took place on December 7, 1978 and the other two days later, on December 9. Accordingly, the date on which the notice took effect is the date when there had to be a valid consent to the adoption in order for there to be a placing, namely on December 9, 1978. If this consent was valid on December 9, 1978, the Youth Court has since then exclusive jurisdiction to rule on the effect, if any, to be given to the subsequent withdrawal of the consent by the parents, and to make a decision as to custody; otherwise, it was for the Superior Court to make that determination when hearing the writ on the merits.

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In short, having regard to the laws of Quebec, the question for the Superior Court judge came down to the following:

Was the consent given valid on December 9, 1978?

As at that date neither of the parents had in fact assumed the care of their child, under s. 6(a) of the Act the consent of either of them sufficed.

Indeed on November 1, 1978, Madeleine Brabant signed the following document in Ontario:

Exhibit I-1

CANADA
PROVINCE OF QUEBEC
DISTRICT OF TERREBONNE

In the matter of
the Adoption of a
child to be born
to Madeline
Brabant and Michel
Paquette.

I, Madeline Brabant, of Main Street, Vankleek Hill, in the Province of Ontario, Mother of a child to be born on or about November 15th, 1978 in the Town of Hawkesbury in the Province of Ontario, do by these presents place the child in the custody of Joseph Antoine Yvon Maurice Galipeau and Marie Lucienne Helene Diane Deslauriers, his wife, both of R.R. No. 1, Grenville, Province of Quebec.

AND I DO AUTHORIZE and consent to the adoption of the child by the said Joseph Antoine Yvon Maurice Galipeau and Marie Lucienne Helene Diane Deslauriers Galipeau.

I understand that an Order for Aoption [sic] will deprive me of my parental rights and further that the child shall take the surname of his adopting parents.

Signed at Hawkesbury, Ontario on the 1st day of November 1978

(signed)

Madeline Brabant

in the presence of

(David Shelly)
Witness

Michel Paquette signed an identical document on the same date. It appears from the evidence presented in the Superior Court as a whole that

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the parents’ desire to recover and have custody of the child became apparent but well after December 9, 1978; at that date, they were still consenting to the placing of their child for adoption purposes.

Having regard to the laws of Quebec, in view of the existence and the validity of the consent on December 9, 1978, the child was at that date a child which could be adopted under the law.

THE CHILD CAN BE ADOPTED UNDER THE LAWS OF ONTARIO.

At first sight, in the absence of consent, appellants’ child is not capable of being adopted under Ontario law.

It is clear, even with reference to the date of December 9, 1978, that the consent given by Madeleine Brabant is not valid.

This can be seen merely by reading s. 73(2) of The Child Welfare Act of Ontario (R.S.O. 1970, c. 64, s. 73, as am. by 1971 (Ont.), vol. 2, c. 98, s. 4(1) and 1975 (Ont.), c. 1, s. 3(1):

73.—(1)…

(2) An order for the adoption of a child under eighteen years of age who was born out of wedlock and who has not been married shall be made only with the written consent of the mother, given after the child was seven days old, and, where the child resides with and is maintained by the father, with the written consent of the father, but the mother or father may cancel such consent within twenty-one days after it was given by a document in writing to that effect.[8]

However, subss. 5 and 6 of this section give the Ontario court the power to grant an adoption in the interests of the child, despite the absence of consent by the mother:

(5) Where a consent required by this section has not been given, the court upon application by the applicant for the adoption may dispense with the requirement if, having regard to all the circumstances of the case, the

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court is satisfied that it is in the best interests of the child that the requirement be dispensed with.

(6) The court shall not dispense with a consent required under this section, except a consent required under subsection 4, until the court is satisfied that the person from whom the consent is required has had notice of the application to dispense with the consent, or that every reasonable effort has been made, in the opinion of the court, to cause such person to be notified.

On December 9, 1978, appellants’ child was therefore one which could be adopted under Ontario law.

I have already dealt with the validity of the notice. As on December 9, 1978, having regard to the laws of both Ontario and Quebec, the child was capable of being adopted, the notice to the Minister had the effect of making it a child that was “placed for adoption”. The Youth Court had thereon and still has exclusive jurisdiction to rule on the custody of the child and, in due course, on its adoption. When deciding those two matters, it will be for that Court to decide what effect, if any, is to be given to the withdrawal by the parents since that date of the consent to adoption which was validly given by them under the Quebec Adoption Act, and to the absence of valid consent to the adoption under the aforesaid Ontario law.

I would dismiss this appeal, and, as suggested by respondents, without costs.

Appeal dismissed without costs.

Solicitors for the appellants: Byers, Casgrain, McNally, Dingle, Benn and Lefebvre, Montreal.

Solicitors for the respondents: Blouin, Piché, Emery and Associates, Montreal.

 



[1] [1980] C.A. 355.

[2] [1925] S.C.R. 532, aff. by [1927] A.C. 211.

[3] [1927] S.C.R. 48, aff. (1926), 40 Q.B. 391.

[4] [1928] S.C.R. 421, aff. (1928), 44 Q.B. 330.

[5] [1934] S.C.R. 501.

[6] [1977] C.A. 319.

[7] It should be added that the law governing the placing of children for adoption by persons other than an adoption society has, since the events of the case at bar, been amended by 1979 (Qué.), c. 17.

[8] There is no need to consider the validity of the consent of Michel Paquette, since the child never resided with him and was not maintained by him.

 

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