Keith v. Decker, 2004 NSSF 115

• Judge: Campbell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 06, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSF 115;(2004), 228 N.S.R.(2d) 377 (SC)

Keith v. Decker (2004), 228 N.S.R.(2d) 377 (SC);

 723 A.P.R. 377

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.031

Jennifer Keith (applicant) v. Sean Michael Decker (respondent)

(SFHMCA 31774; 2004 NSSF 115)

Indexed As: Keith v. Decker

Nova Scotia Supreme Court

Campbell, J.

December 17, 2004.

Summary:

The unmarried parents of a child born in 1996 agreed to a consent order whereby the father's parental rights were terminated. The father, who denied paternity, gave up any right to seek custody or access and signed a written consent to any adoption. No child support was payable. Seven years later, the mother applied for child support for the now eight year old daughter. The alleged father applied to dismiss the application on the grounds that (1) the consent to adoption terminated any support obligation; (2) the adoption consent constituted an adoption agreement; (3) since all parental rights were terminated by the court order, all obligations were terminated as well; (4) the court order implied that he was not the father; and (5) res judicata precluded the application.

The Nova Scotia Supreme Court dismissed the application. The support application was not precluded and could proceed.

Family Law - Topic 1551

Adoption - Consent of parents - Effect of - The unmarried parents of a child born in 1996 agreed to a consent order whereby the alleged father's parental rights were terminated - The father gave up any right to custody or access and provided a written consent to any future adoption - No child support was payable and there was never any adoption - Seven years later, the mother applied for child support for the now eight year old daughter - The alleged father applied to dismiss the application on the grounds that (1) the consent to adoption terminated any support obligation; (2) the adoption consent constituted an adoption agreement; (3) since all parental rights were terminated by the court order, all obligations were terminated as well; (4) the court order implied that he was not the father; and (5) res judicata precluded the application - The Nova Scotia Supreme Court held that a support application was not precluded - A consent to adoption only terminated a father's support obligation if it culminated in an adoption - A consent to adoption did not constitute an adoption agreement - The consent order did not permanently terminate parental rights or obligations - The absence of a support obligation in the consent order did not imply a lack of paternity - In any event, parents could not bargain away a child's right to support - Finally, res judicata did not apply.

Family Law - Topic 1553

Adoption - Consent of parents - Validity of - As part of a consent order terminating any parental rights, an alleged father provided the mother with a consent to adoption to be used for any future adoption - No adoption was planned or foreseeable - The Nova Scotia Supreme Court stated that "a generic consent to adoption 'in vacuo' may not be valid" - See paragraph 17.

Family Law - Topic 1677

Adoption - Effect of adoption - On maintenance obligations - [See Family Law - Topic 1551 ].

Family Law - Topic 2252

Maintenance of wives and children - Jurisdiction - Consent orders - [See Family Law - Topic 1551 ].

Family Law - Topic 2350

Maintenance of wives and children - Maintenance of children - Termination of obligation - Upon adoption - [See Family Law - Topic 1551 ].

Family Law - Topic 2367

Maintenance of wives and children - Defences or bars - Delay or estoppel - [See Family Law - Topic 1551 ].

Family Law - Topic 2368

Maintenance of wives and children - Defences or bars - Res judicata - [See Family Law - Topic 1551 ].

Cases Noticed:

Wagstaff v. Wagstaff (1981), 48 N.S.R.(2d) 466; 92 A.P.R. 466 (Fam. Ct.), refd to. [para. 11].

Fletcher v. Bourgeios (2004), 222 N.S.R.(2d) 224; 701 A.P.R. 224 (S.C.), refd to. [para. 13].

Walsh v. Walsh (1987), 80 N.S.R.(2d) 350; 200 A.P.R. 350 (Fam. Ct.), refd to. [para. 14].

Director of Child Welfare (P.E.I.) v. S.M.A., [1985] P.E.I.J. No. 25, refd to. [para. 22].

Aken v. Aken, [1988] B.C.J. No. 1723, refd to. [para. 23].

Waschenfelder v. Szarkowicz (1994), 127 Sask.R. 75 (Q.B.), refd to. [para. 25].

Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 98 N.S.R.(2d) 429; 263 A.P.R. 429 (C.A.), refd to. [para. 34].

Huddersfield Banking Co. v. Lister (Henry) and Son Ltd., [1895] 2 Ch. 273 (C.A.), refd to. [para. 35].

Mackay v. Butcher (2001), 196 N.S.R.(2d) 293; 613 A.P.R. 293; 2001 NSCA 120, refd to. [para. 41].

P.I.Mn. v. R.Mn., [2002] N.S.R.(2d) Uned. 15; 2001 NSCA 26, refd to. [para. 41].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [para. 44].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 45].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 45].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 68 [para. 29].

Counsel:

Joseph Cooper, Q.C., for the applicant;

Gordon Kelly, for the respondent.

This application was heard on October 6, 2004, at Halifax, N.S., before Campbell, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 17, 2004.