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'Judge-made vortex of uncertainty and delay' stalled N.S. adoption: appeal court

Last Updated Aug 23, 2017 at 5:00 pm EDT

HALIFAX – Nova Scotia’s highest court has issued an unusually blunt rebuke to a judge who delayed an adoption hearing because of “entirely hypothetical” constitutional concerns about whether the child’s biological father had been given proper notice.

In a unanimous decision, the Nova Scotia Appeal Court says the adoptive parents of a young baby found themselves caught in a “judge-made vortex of uncertainty and delay” that stalled the adoption for almost a year at great expense and anxiety to the family.

Justice Cindy Bourgeois found that the adoptive parents “did everything right,” but suffered a patent injustice due to the hearing judge’s unfounded concerns and “intrusion” into the legislative arena.

“There was no good reason for the hearing judge to subject these would-be parents and their child to unnecessary turmoil,” she said in the decision released Wednesday, which took the extraordinary step of issuing an order for the adoption.

“They have been through enough,” Bourgeois said, adding that the parents and the child “deserve to move on in the building of their family, with the immediate certainty an order for adoption from this court will provide.”

At issue was a baby girl, born in March 2016, who was placed into the province’s care by the biological mother shortly after birth.

The baby was placed with a couple, who soon filed an adoption application with the consent of the community services minister.

However, a judge of the Nova Scotia Supreme Court’s family division did not grant the uncontested application.

Associate Chief Justice Lawrence O’Neil expressed concerns related to the absence of consent from the biological father.

He assured the prospective parents it was a “technical issue” that could be addressed quickly — within a week to 10 days.

A lawyer for the adoptive parents responded to O’Neil’s concerns in a formal letter a few days later, pointing out that a “child in care” only required ministerial consent and alerted him to case law that supported this.

But the judge was not satisfied and a few weeks later issued a written decision inviting the minister to answer questions.

Lawyers for the minister responded with extensive written submissions indicating that all policies were followed, the required questions had been asked of the birth mother and all the needed consents had been received.

The province also requested a hearing to fully respond to the issues raised by the judge.

But the day before the hearing, O’Neil informed lawyers for the parents and the province that he was considering making a constitutional reference.

At the hearing, a lawyer for the adoptive parents pleaded with the judge to “leave her clients out of it” by granting the adoption.

Lawyers for both the parents and the province argued against making a constitutional reference.

But days later O’Neil notified both parties he would not grant the adoption and was moving forward with his own self-directed Charter-based questions. On his own motion, he referred a number of constitutional questions to himself for determination.

“The issues raised by the hearing judge were moot,” Bourgeois said in the appeal decision. “They were not triggered by a litigant with a real, or even potential, argument that the legislation constituted an infringement on their rights.

“The concerns raised were those solely of the hearing judge. They were entirely hypothetical.”

Bourgeois said she agreed with the minister’s contention that almost “one-half of a young child’s life has passed in the context of uncertainty and caregiver anxiety, caused solely by a hearing judge’s unilateral ‘concerns,’ not founded in law.

“We are satisfied that the hearing judge erred in legal principle when forging ahead with a self-directed constitutional reference. With respect, it was inappropriate and ill-conceived. The hearing judge was provided with the correct legal principles and authorities which ought to have informed his decision. In our respectful view, he ignored these and the practical consequences of his decision.”