Fathers Not Shortchanged by Current Adoption Legislation

• Author: Navnit Duhra
• Position: Is a second year law student at the University of Victoria
• Pages: 22-27

22 n APPEAL VOLUME 13

COMMENTARY

FATHERS NOT SHORTCHANGED BY CURRENT

ADOPTION LEGISLATION

By Navnit Duhra*

CITED: (2008) 13 Appeal 22-27

Issues around adoption can be both emotion arousing and contentious. This is evidenced

by the public reaction to a recent British Columbia Supreme Court (BCSC) decision assessing the

issue of birth fathers and adoption notice. In her ruling, Smith J. overruled the decision made by

Master Caldwell, in which he found that the adoption of an aboriginal child could not proceed

until the mother divulged the identity of the birth father so that he could be provided with

notice of the adoption proceedings. Her decision sparked debate over the merits of the current

adoption legislation and the disservice it does to father’s rights. In response to her decision, the

Vancouver Sun published an editorial arguing that the current legislation prevents birth fathers

who are unaware they have children from ever knowing those children unless the mother

decides to name them, and that this is not in the best interests of the child.1 Yet the editorial

acknowledges that Smith J. interpreted the Act correctly, and therefore deemed the problem

to lie with the Act itself, which needs to be remedied if the best interests of the child are to be

protected. However, upon examining the Act, it is found that provisions are in place to protect

unacknowledged birth fathers. As such, the B.C. Adoption Act (“the Act”), in its current form,

suff‌iciently balances the interests of the father, the mother and particularly the child in adoption

proceedings and should not be amended to accommodate the interests of birth fathers who are

unaware they have fathered a child.

THE ADOPTION ACT

The purpose of the Act is to “provide for new and permanent family ties through adoption,

giving paramount consideration in every respect to the child’s best interests.”2 As such, it can

be stated that the proper lens though which the Act is to be interpreted is that provided by the

best interests of the child principle; however, this is not to say that the Act does not consider the

birth mother’s or birth father’s rights. For the purposes of this discussion, the relevant provisions

of the Act are ss. 6(1)(g), 10, 11 and 13.

Section 13(1) states that the consent of the child (if over the age of 12), the birth mother,

the birth father and any person appointed the child’s guardian are required for a child’s adop-

tion. Furthermore, s. 13(2) specif‌ies who is considered a father for the purposes of the Act. It

* Navnit Duhra is a second year law student at the University of Victoria.

1 “Adoption Law Needs Overhauling to Give Children Knowledge of Their Birth Dads” The Vancouver Sun (3 October

2007).

2 Adoption Act, R.S.B.C. 1996, c. 5, s. 2.