J.S. v. J.R., 2006 ABQB 940

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 05, 2006
• Citations: 2006 ABQB 940;(2006), 414 A.R. 306 (QB)

J.S. v. J.R. (2006), 414 A.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.124

J.S. (appellant) v. J.R. (respondent)

(FL03 02646; 2006 ABQB 940)

Indexed As: J.S. v. J.R.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

December 21, 2006.

Summary:

A child was born on December 10, 2005. The parents had separated after a short live-in relationship. Two days later, the mother consented to the child's adoption by a British Columbia couple. The mother obtained an ex parte order dispensing with the father's consent to the adoption on the basis of her information that the father posed a threat to the child and the adoptive parents. In February 2006, the father applied under the Alberta Family Law Act for guardianship. The child had already been placed with the adoptive parents in British Columbia. In July 2006, the B.C. adoption was finalized. The father expressly applied for an order that the Alberta court assume jurisdiction and grant him guardianship, and impliedly for an order setting aside the ex parte order dispensing with his consent. The mother and adoptive parents contested the jurisdiction of the Alberta court.

The Alberta Court of Queen's Bench set aside the ex parte order dispensing with the father's consent to the adoption. There were no grounds to dispense with the father's consent. The mother's information that the father posed a threat was intentionally misleading and appeared to approach fraud. However, since the child was in the adoptive parents' care for a year, B.C. was the appropriate jurisdiction to determine the best interests of the child. Any application by the father to set aside the B.C. adoption had to be made in B.C. If the adoption was set aside, the Alberta courts would have jurisdiction under the Family Law Act to deal with the father's guardianship and parenting issues, but B.C. was the more appropriate jurisdiction to deal with those issues as well. The court adjourned the father's Alberta guardianship application. If the B.C. courts declined jurisdiction, the father could renew his Alberta application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - A child was born on December 10, 2005 to separated parents - Two days later, the mother consented to the child's adoption by a British Columbia couple and obtained an ex parte order dispensing with the father's consent to the adoption on the basis of information that the father posed a threat to the child and adoptive parents - In February 2006, the father applied under the Alberta Family Law Act for guardianship - The child had already been placed with the adoptive parents in British Columbia - In July 2006, the B.C. adoption was finalized - The father applied for an order that the Alberta court assume jurisdiction and grant him guardianship, impliedly seeking an order setting aside the ex parte order dispensing with his consent - The mother and adoptive parents contested the jurisdiction of the Alberta court - The Alberta Court of Queen's Bench set aside the ex parte order dispensing with the father's consent - There were no grounds to dispense with the father's consent - The mother's information that the father posed a threat was intentionally misleading and appeared to approach fraud - However, since the child was in the adoptive parents' care for a year, B.C. was the appropriate jurisdiction to determine the best interests of the child - Any application by the father to set aside the B.C. adoption had to be made in B.C. - If the adoption was set aside, the Alberta courts would have jurisdiction under the Family Law Act to deal with the father's guardianship and parenting issues, but B.C. remained the more appropriate jurisdiction to deal with those issues as well - The court adjourned the father's Alberta guardianship application - If the B.C. courts declined jurisdiction, the father could renew his Alberta application.

Conflict of Laws - Topic 2382

Family law - Adoption - Jurisdiction - [See Conflict of Laws - Topic 2302 ].

Family Law - Topic 1423

Adoption - Jurisdiction - Residence of child or parents - [See Conflict of Laws - Topic 2302 ].

Family Law - Topic 1569

Adoption - Consent of parents - Dispensing with consent - Grounds for - [See Conflict of Laws - Topic 2302 ].

Family Law - Topic 1607

Adoption - Adoption order - Setting aside - Grounds for (incl. appeals and judicial review) - [See Conflict of Laws - Topic 2302 ].

Cases Noticed:

J.D.B., Re, 2006 ABQB 681, refd to. [para. 29].

E.D.W. v. Director of Child Welfare (Alta.) (2005), 382 A.R. 80; 2005 ABQB 304, refd to. [para. 47].

D.R.H., Re, [2004] A.R. Uned. 509; 2004 ABQB 481, disagreed with [para. 47].

N.P. v. LDS Adoption Services et al. (2006), 392 A.R. 282; 57 Alta. L.R.(4th) 59; 2006 ABQB 78, refd to. [para. 54].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005), vol. 2, § 18.1.d [para. 54].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2000), p. 288 [para. 31].

Counsel:

Cindy Turner (Family Law Office), for the applicant;

Richard A. Low (Richard A. Low Professional Corp.), for the respondents.

This application was heard on December 5, 2006, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 21, 2006.