H., Re; P., Re, (1992) 127 A.R. 218 (CA)

• Judge: Stratton, Fraser and Major, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 22, 1992
• Citations: (1992), 127 A.R. 218 (CA)

H., Re (1992), 127 A.R. 218 (CA);

         20 W.A.C. 218

MLB headnote and full text

In The Matter Of the Child Welfare Act and In The Matter Of the Application by B.W.D. and K.L.D. for an Adoption Order in respect of the Child Baby Girl H., born August 26, 1990, Birth Registration Number 90 030511;

And In The Matter Of an Appeal by the Director of Child Welfare of the formal judgment of the Honourable Mr. Justice D.C. McDonald. (Appeal No. 9103-0567-AC)

In The Matter Of the Child Welfare Act and In The Matter Of the Application by M.S. and M.E.S. for an Adoption Order in respect of the Child Baby Girl P., born October 15, 1988, Birth Registration No. 038852 1988;

And In The Matter Of an Appeal by the Director of Child Welfare of the formal judgment of the Honourable Mr. Justice D.C. McDonald.

(Appeal No. 9103-0568-AC)

Indexed As: H., Re; P., Re

Alberta Court of Appeal

Stratton, Fraser and Major, JJ.A.

April 22, 1992.

Summary:

The issue in these two cases was whether notice of an adoption application need be given to the natural mother of a child subject to a permanent guardianship agreement or order, where the mother had no continuing relationship with the child subsequent to the guardianship order.

The Alberta Court of Queen's Bench, in a judgment reported 121 A.R. 314, held that the natural mother was entitled to notice. The Director of Child Welfare appealed.

The Alberta Court of Appeal allowed the appeal and held that the mother was not entitled to notice.

Family Law - Topic 1708

Adoption - Practice - Application - Notice of - Shortly after the birth of her child, the natural mother signed a perma­nent guardianship agreement surrendering the child to the Director of Child Welfare - The mother had no further contact with the child - The Director was appointed permanent guardian by court order - The Director consented to the adoption of the child by the adoptive parents - The Child Welfare Act did not require notice of the application to the natural mother - The Alberta Court of Appeal held that notice need not be given to a natural mother who did not have a continuing relationship with the child after the permanent guardianship agreement or order.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian - Effect of - [See Family Law - Topic 1708 ].

Cases Noticed:

Alberta Birth Registration 78-08-022716, Re (1986), 1 R.F.L.(3d) 1 (B.C.C.A.), refd to. [para. 5].

S. v. Minister of Social Services (1983), 33 R.F.L.(2d) 1 (Sask. C.A.), refd to. [para. 5].

Arnold v. Wilson and Wilson (1986), 65 A.R. 375 (C.A.), refd to. [para. 5].

H.J.L. v. L.A. and R.D.A. (1986), 69 A.R. 243 (C.A.), refd to. [para. 5].

J.R. v. New Brunswick (Minister of Health and Community Services) (1990), 26 R.F.L.(3d) 62 (N.B.C.A.), refd to. [para. 5].

P.K. v. J.B.M. and B.L.M. (1990), 107 A.R. 145; 26 R.F.L.(3d) 410 (C.A.), refd to. [para. 5].

Gorenstein, In Re (1951), 1 W.W.R.(N.S.) 16 (Man. C.A.), refd to. [para. 5].

Mernickle v. Westaway, [1986] 3 W.W.R. 665 (B.C.C.A.), refd to. [para. 24].

Chauvin v. Rachow (1989), 32 E.T.R. 157 (Ont. S.C.), refd to. [para. 24].

Oliphant Estate, Re (1990), 84 Sask.R. 44; 38 E.T.R. 133 (Q.B.), refd to. [para. 24].

Purpur Estate, Re; Purpur Estate v. Ash, Webster, Haberstock and an Unknown Infant (1984), 30 Man.R.(2d) 241; 17 E.T.R. 253 (C.A.), refd to. [para. 29].

Statutes Noticed:

Child Welfare Act, S.A. 1984, c. C-8.1, sect. 2(m) [para. 32]; sect. 10, sect. 32 [para. 1]; sect. 60(1) [para. 4]; sect. 65(1), sect. 65(2) [para. 22].

Counsel:

C.R. Ford, for the appellant;

W.T. Aaron, amicus curiae.

These appeals were heard before Stratton, Fraser and Major, JJ.A., of the Alberta Court of Appeal.

On April 22, 1992, Major, J.A., delivered the following judgment for the Court of Appeal.