C.H. v. R.S. and M.E.S., (1989) 97 N.B.R.(2d) 65 (CA)

• Judge: Angers, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 02, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 97 N.B.R.(2d) 65 (CA)

C.H. v. R.S. (1989), 97 N.B.R.(2d) 65 (CA);

    97 R.N.-B.(2e) 65; 245 A.P.R. 65

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R.S. and M.E.S. (appellants) v. C.H. (respondent) (50/89/CA)

Indexed As: C.H. v. R.S. and M.E.S.

New Brunswick Court of Appeal

Angers, Rice and Ayles, JJ.A.

June 2, 1989.

Summary:

A 21 year old unmarried mother placed her newborn child for adoption with R.S. and M.E.S., executed the required consent and notified the Minister as required under the Family Services Act. Five months later, before an adoption order was made, the mother revoked her consent as permitted by s. 77(2) of the Act and commenced an action for the return of the child. R.S. and M.E.S. sought an order under s. 78(1) to waive the mother's required consent.

The New Brunswick Court of Queen's Bench, Family Division, in a judgment reported 94 N.B.R.(2d) 301; 239 A.P.R. 301, allowed the mother's application and ordered that the child be returned to her. R.S. and M.E.S. appealed.

The New Brunswick Court of Appeal dismissed the appeal, but applied a different test than applied by the trial judge.

Family Law - Topic 1561

Adoption - Consent of parents - Withdrawal or revocation of consent - [See Family Law - Topic 1569 below].

Family Law - Topic 1569

Adoption - Consent of parents - Dispensing with consent - Grounds - A 21 year old unmarried mother who consented to the adoption of her newborn child revoked her consent five months later (before an adoption order had been made) as permitted by s. 77(2) of the Family Services Act - The proposed adoptive parents sought to waive the mother's required consent under s. 78(1) of the Act - The New Brunswick Court of Queen's Bench, Family Division, ordered the child returned to the mother on the ground that there was no abandonment, misconduct or moral turpitude warranting dispensing with the mother's consent - The New Brunswick Court of Appeal agreed with the result, but held that the proper test under s. 78(1) was the best interests of the child - The court stated that the child should have been returned to the mother when she lawfully revoked her consent to the adoption.

Cases Noticed:

Levesque v. Levesque (1983), 46 N.B.R.(2d) 184; 121 A.P.R. 184 (C.A.), refd to. [para. 14].

Statutes Noticed:

Family Services Act, S.N.B. 1980, c. F-2.2, preamble [para. 16]; sect. 1 [para. 14]; sect. 3 [para. 29]; sect. 77(2) [para. 5]; sect. 78(1)(b) [para. 9].

Counsel:

George B. Smith, for the appellants;

Barbara Stanley, for the respondent.

This appeal was heard on May 19, 1989, before Angers, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal.

On June 2, 1989, Angers, J.A., delivered the following judgment for the Court of Appeal.