2018 QCCQ 7276, 2018 QCCQ 7276

Adoption — 18439 2018 QCCQ 7276 JL4031 COURT OF QUEBEC CANADA PROVINCE DE QUÉBEC DISTRICT DE [...] «Youth Division» N° : 525-43-007492-180 DATE : October 5, 2018 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ IN THE CASE OF : X Born on [...], 2003 A B Co-applicants - and - C Respondent -and- Director of Youth Protection Centre -and- D -and- A (in her capacity as Tutor) -and- X -and- The Public Curator of Quebec Mises en cause ______________________________________________________________________ JUDGEMENT OF AN APPLICATION FOR ORDER OF PLACEMENT ______________________________________________________________________ WARNING: The judicial files respecting the adoption of a child are confidential and no information that would allow the identification of the child, his parents, his tutor or the adopters may be published or broadcast, except as required by law (sections 12 to 16 C.C.P. (CQLR, c.

C- 25.01) and 582 C.C.Q.). Introduction [ 1 ] The Court is seized of an Application for order of placement regarding the child X (

X) born on [...], 2003. This application follows a special adoption consent signed by the child’s tutor ad hoc in favour of the applicants, who are not related to the child. [ 2 ] The principal question raised by this application is if a special adoption consent can be given in favour of a person who is not listed in

section 555 of the Civil code of Québec , which reads as follows: Consent to adoption may be general or special; special consent may be given only in favour of an ascendant of the child, a relative in the

collateral line to the third degree or the spouse of that ascendant or relative; it may also be given in favour of the spouse of the father or mother. However, in the case of de facto spouses, they must have been cohabiting for at least three years. (our emphasis) The relevant facts [ 3 ] X was born in 2003. [ 4 ] X’s mother passed away in 2006. [ 5 ] X’s father, whose paternity was only recognized in 2010, never parented his daughter and maintained only sporadic contact with her over the years.

He was served with the present Application but did not appear, file a defense or come to court. [ 6 ] X lived with her maternal grandparents from 2006 to 2011 during which time she got to know the applicants, Mrs. A [1] , and her husband, Mr. B [2] , through their daughter, Y, who is close in age to X. [ 7 ] The applicants and X are not related. [ 8 ] X has been in the care of the applicants since April 2011. [ 9 ] In January 2012, Mrs.

A was named tutor to X. [ 10 ] Over time, X, the applicants and their daughter Y came to see themselves as a family, from which came the idea that the applicants adopt X. [ 11 ] With this goal in mind, on August 8, 2017, Mrs. A’s brother, Mr. D, was named tutor ad hoc to X for the purpose of her adoption. On the same date, Mr. D signed a special adoption consent in favour of the applicants.

The fact that the consent was given by the tutor ad hoc rather than the tutor raises no concerns given that this way of proceeding has been recommended and approved by the Courts on various occasions so as to avoid situations where tutors consent to adopting their own pupil. [3] [ 12 ] On December 12, 2017, X, who was fourteen (14) at the time, duly consented to be adopted by the applicants. [ 13 ] The present application was filed on January 9, 2018. [ 14 ] On May 17, 2018, the Superior court deprived the father of his parental authority towards X. [ 15 ] The present application began before the undersigned on May 23, 2018 and was continued to June 20, 2018 to allow time for the father to appeal the Court order depriving him of his parental authority, which he did not do. [ 16 ] The father was notified anew that the present hearing was continued on June 20, 2018 but he still did not come forward. [ 17 ] The hearing was continued on June 20, 2018 and, as agreed, additional case law was submitted by the applicants’ attorney in July, since which time the case has been under advisement.

The issues [ 18 ] The essence of an order of placement is to ensure the legality of the adoption process. In effect, the Civil code of Québec sets out that before granting an order of placement, the court must ensure that the conditions for adoption have been complied with. [4] The law requires that adoptions only take place if it’s in the child’s best interest and if the conditions prescribed by law have been respected. [5] [ 19 ] In X’s case, the Court heard the testimony of the tutor ad hoc as well as that of X, Mrs. A and the applicants’ daughter, Y.

Their evidence clearly establishes the bond between X and the applicants’ family, the exceptional care the applicants have provided to X over the years, their future commitment towards X and the latter’s burning desire to be adopted by the applicants so as to become a full- fledged member of their family. Thus, the adoption is clearly in X’s best interest. [ 20 ] That said, and other conditions prescribed by law having been respected, two particular aspects of this case require particular attention.

First, who can consent to an adoption and secondly, in favour of whom the said consent can be given. [ 21 ] With regard to the first question, the law stipulates that it is normally the parents who can consent to their child’s adoption. [6] At the time the tutor ad hoc consented to the adoption in favour of the applicants, the mother was deceased but the father was not, nor was he deprived of his parental authority. One can therefore question the validity of the tutor ad hoc’s consent.

Although this is a legitimate question, it becomes somewhat moot because, as we know, the father was subsequently deprived of his parental authority, which then allowed the tutor to consent to the adoption. [7] Indeed, the father was deprived of his parental authority on May 17, 2018 and proceedings on the present application began before the undersigned on May 23, 2018, at which time the tutor ad hoc voiced his consent to the adoption of the child by the applicants. As did X and the applicants at the June hearing. [ 22 ] Of greater concern however is in whose favour the adoption consent was given.

As mentioned earlier, the applicants and X are not related, whereas the law stipulates that a “ special adoption consent may be given only in favour of an ascendant of the child, a relative in the collateral line to the third degree or the spouse of that ascendant or relative ”. [8] (our emphasis) [ 23 ] The applicants and X readily admit that this legal requirement was not respected but submit that there are no other avenues for X to be adopted by the applicants, that said adoption would be in her best interest and that other judges in other cases have granted applications similar to this one so as to allow children to be adopted when it was deemed in their best interest. [ 24 ] Unfortunately, the Court cannot accept these arguments.

[ 25 ] First, it is the Court’s role to ensure not only that X’s adoption would be in her best interest but also that all legal provisions have been respected. [ 26 ] This is particularly true in matters related to adoption given that adoption is of public order. [9] [ 27 ] Although some judges may have granted orders of placement that at first glance appear not to respect the provisions of the law, these orders provide no legal reasons (law, jurisprudence or doctrine) that explain on what basis the judge granted the application; the said applications were simply “granted”. [ 28 ] More importantly, in those cases where the courts did examine the question at bar, the applications were dismissed.

This includes special adoption consents given in favour of the child’s cousin [10] , the mother’s ex-spouse [11] , the child’s legal guardian [12] and the mother’s long-time friend [13] , even though the adoption would have been in the child’s best interest. [ 29 ] Our colleague Jean Gravel sums it up well: La recherche du meilleur intérêt d’un enfant doit toujours demeurer un outil d’analyse qui s’insère dans une démarche légale.

L’intérêt d’un enfant ne peut, dans des circonstances où le législateur a prévu les conditions donnant ouverture à un recours, transcender ces prescriptions et créer un nouveau procédé légal. … Le président du Tribunal ne peut rendre de décision d’accommodement; il a le devoir de s’assurer que les conditions d’adoption ont été respectées, tel que le stipule l’

article 568 du Code civil du Québec . [14] [ 30 ] Similarly, judge Ann-Marie Jones, J.C.Q., writes: Le législateur a prévu un recours en matière d’adoption et le Tribunal ne peut y passer outre, même dans l’intérêt de l’enfant. Il faut donc conclure que le texte de l’

article 543 C.c.Q. impose deux exigences cumulatives.

En ce sens, le Tribunal doit s’assurer que la requête respecte les dispositions du Code civil en matière d’adoption, pour ensuite examiner si le projet d’adoption est dans l’intérêt de l’enfant. [15] [ 31 ] Thus, the law requires not only that the adoption be in the child’s best interest but also that it respect all legal requirements. [ 32 ] In our view, the argument that no other legal means exist for the applicants to adopt X is not relevant and not exact. [ 33 ] First, the legislator clearly chose to limit the persons in favour of whom a special adoption consent could be given.

Consequently, it was foreseeable that not any adult could adopt any child, regardless of the child’s best interest. Yet, this was clearly the legislator’s choice. And the legislator did not provide exceptions to the criteria of

section 555 C.c.Q. for cases of special adoption consents as is the case with international adoptions. [16] It is by design that the legislator identified who can adopt a child by way of a special adoption consent, as explained by our colleague, Judge Yvan Cousineau: Le législateur a cependant prévu un consentement spécial à l’intérieur de la famille de façon à éviter l’application de différentes règles dont l’implication du Directeur de la protection de la jeunesse et l’évaluation par ce dernier. Les personnes en faveur de qui ce consentement est donné sont toutes énumérées à l’

article 555 du Code civil du Québec . Cet

article doit donc être interprété de façon restrictive étant une exception au principe général du consentement. [17] [ 34 ] Finally, the premise that there are no other legal means for X to be adopted by the applicants is not exact in that, assuming that no means exist while X is a minor, which may or may not be the case, there are provisions in the law for adoptions of adults [18] . Conclusion [ 35 ] Setting aside any question regarding the tutor’s (or tutor ad hoc’

s) ability to consent to the adoption prior to the father having been deprived of his parental authority and even though X’s adoption by the applicants would be in her best interest, the consent given was invalid because it was made in favour of persons who are not listed in the law. [ 36 ] FOR THESE REASONS, THE COURT DISMISSES THE APPLICATION. SIGNED IN TOWN A On October 5 th , 2018 __________________________________ CLAUDE LAMOUREUX, J.C.Q. M e Doreen Brown Attorney for the co-applicants

M e Robert Hamel Attorney for the adolescent Dates of hearing: May 23 rd & June 20, 2018 CL/nl