G.M.Z. and E.G.Z. v. T.F.S.B., (1980) 4 Man.R.(2d) 390 (CA)

• Judge: Freedman, C.J.M., Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: August 08, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 4 Man.R.(2d) 390 (CA)

G.M.Z. v. T.F.S.B. (1980), 4 Man.R.(2d) 390 (CA)

MLB headnote and full text

G.M.Z. and E.G.Z. v. T.F.S.B.

Indexed As: G.M.Z. and E.G.Z. v. T.F.S.B.

Manitoba Court of Appeal

Freedman, C.J.M., Matas and Huband, JJ.A.

August 8, 1980.

Summary:

This case arose out of an application by a mother and her new husband to adopt her daughter by a previous marriage. The natural father of the girl had access rights granted under the Divorce Act.

The Manitoba County Court in a judgment reported 1 Man.R.(2d) 253; 13 R.F.L.(2d) 283, dispensed with the consent of the natural father and granted the adoption order. The County Court failed to consider whether the natural father was entitled to visit the child after the adoption under s. 100(6), (7) of the Child Welfare Act, R.S.M. 1970, c. C-80. The natural father appealed on the grounds that his consent should not have been dispensed with and that the County Court erred in failing to consider s. 100(6),(7).

The Manitoba Court of Appeal allowed the appeal in part. The court held that the County Court properly dispensed with the natural father's consent, but erred in failing to consider whether the natural father should have visiting rights. The court remitted the matter to the County Court for the consideration of visiting rights - see paragraphs 1 to 39.

Huband, J.A., dissenting, agreed that the natural father's consent was properly dispensed with, but was of the opinion that the natural father's access rights under the Divorce Act still existed and that there was no jurisdiction to consider visiting rights under s. 100(6),(7) - see paragraphs 55, 59 and 81.

Family Law - Topic 1567

Adoption - Consent of parents - Dispensing with consent - Considerations - The parents of an eight year old girl separated when she was 2.5 years old and the father saw her seldom after - Both parents remarried - The girl did not know her father and did not want to visit him - The mother and her new husband applied to adopt the girl, but the father opposed the application - The Manitoba County Court granted the adoption and dispensed with the father's consent, because it was in the girl's best interests that the adoption be granted - The Manitoba Court of Appeal affirmed the decision of the County Court - See paragraphs 14 to 15 and 43 to 48.

Family Law - Topic 1666

Adoption - Effect of adoption order - On access rights granted under Divorce Act - The Manitoba Court of Appeal held that an adoption order granted under the Child Welfare Act, R.S.M. 1970, c. C-80, terminated access rights previously granted to a parent under the Divorce Act - See paragraphs 17 to 38.

Family Law - Topic 1670

Adoption - Effect of adoption - Rights of natural parents - Visiting rights - S. 100(6),(7) of the Child Welfare Act, R.S.M. 1970, c. C-80, provided that the natural father of a child could apply for the right to visit the child after its adoption by its natural mother and her new husband - The Manitoba Court of Appeal held that a trial judge in granting an order for the adoption of a child by her natural mother and her new husband erred in failing to consider whether the natural father should have the right to visit the child - See paragraphs 2 to 5, 16 and 38.

Cases Noticed:

Hillier et al. v. Williams (1980), 2 Man.R.(2d) 251; 14 R.F.L.(2d) 31, consd. [para. 8].

Richards v. Richards, [1972] 2 O.R. 596 (Ont. C.A.), dist. [para. 8].

Gillespie v. Gillespie (1974), 7 N.B.R.(2d) 569; 13 R.F.L.(2d) 344 (N.B.S.C.), dist. [para. 8].

North v. North, [1978] 6 W.W.R. 75 (B.C.S.C.), not folld. [para. 8].

Re S. et al.; S. et al. v. S. (1979), 9 R.F.L.(2d) 48 (Man.C.C.), not folld. [para. 9].

Re Adoption No. H5877 (1976), 21 R.F.L. 306 (Man. C.A.), refd to. [para. 16].

Kerr v. McWhannel, [1974] 6 W.W.R. 543; 16 R.F.L. 185; 46 D.L.R.(3d) 624 (B.C.C.A.), refd to. [para. 28].

Whyte v. Whyte (1969), 69 W.W.R.(N.S.) 536 (Man. C.A.), appld. [para. 18].

Zacks v. Zacks, [1973] 5 W.W.R. 289 (S.C.C.), appld. [para. 18].

Reference Re Adoption Act, etc., [1938] S.C.R. 398, appld. [para. 18].

Pshebnicki et ux v. Yurchuk (1968), 62 W.W.R.(N.S.) 251 (Man. C.A.), appld. [para. 20].

Gubody v. Gubody, [1955] O.W.N. 548, refd to. [para. 21].

Kredl v. Attorney General of Que., [1966] S.C.R. 320; 56 D.L.R.(2d) 437, affirming [1964] Que. Q.B. 689, appld. [para. 22].

Goldstein v. Brownstone et al. (1970), 75 W.W.R.(N.S.) 193; 3 R.F.L. 4, appld. [para. 23].

R. v. County Court Judge, Ex parte Sobering (1970), 8 D.L.R.(3d) 575; 71 W.W.R.(N.S.) 283, appld. [para. 24].

Sobering v. Sergeant (1972), 6 R.F.L. 51, appld. [para. 25].

Smith v. Koch, [1976] 3 W.W.R. 346 (Alta. S.C.), appld. [para. 28].

Morrison v. Perry (1973), 11 R.F.L. 214 (Alta. C.A.), appld. [para. 28].

Re J.D. (1979), 8 R.F.L.(2d) 208 (Ont. P.C., Fam. Div.), consd. [para. 32].

Re Fisheries Act 1914; A.G. Can. v. A.G. B.C., [1930] A.C. 111; [1929] 3 W.W.R. 449; [1930] 1 D.L.R. 194, refd to. [para. 33].

Re Waters and Water-Powers, [1929] S.C.R. 200; [1929] 2 D.L.R. 481, refd to. [para. 33].

Re Sobering (1979), 9 R.F.L.(2d) 48, consd. [paras. 9, 35].

Statutes Noticed:

Child Welfare Act, R.S.M. 1970, c. C-80, sect. 89 [paras. 1, 51]; sect. 96(1) [para. 55]; sect. 100(6), sect. 100(7) [paras. 4, 76].

Divorce Act, R.S.C. 1970, c. D-8, sect. 11.

Authors and Works Noticed:

Hogg, Constitutional Law of Canada, pp. 378-379 [para. 31].

Power on Divorce (3rd Ed.), vol. 1, p. 251 [para. 18].

Counsel:

V.W. Libitka, for the respondent/appellant;

N.S. Gould, for the applicants/respondents.

This case was heard on February 13, 1980, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On August 8, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MATAS, J.A. - see paragraphs 1 to 39;

HUBAND, J.A., dissenting - see paragraphs 40 to 81.

FREEDMAN, C.J.M., concurred with MATAS, J.A.