2021 QCCQ 9790, 2021 QCCQ 9790

Adoption — 21367 2021 QCCQ 9790 COURT OF QUEBEC CANADA PROVINCE DE QUÉBEC DISTRICT DE [...] «Youth Division» N° : 525-43-007964-212 DATE : September 23rd, 2021 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ IN THE CASE OF : X Born on [...], 2020 [SOCIAL WORKER 1], duly authorized by the Director of Youth Protection A, working at [...] Applicant -and- A -and- B Co-applicants ______________________________________________________________________ JUDGEMENT OF A JOINT 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.). [ 1 ] The Director of Youth Protection (Director) and the adopters filed a Joint application for order of placement for adoption of the child , who is currently 17 months old. [ 2 ] The day following the child’s birth, both biological parents signed general adoption consents “ with recognition of the pre-existing bonds of filiation”. [ 3 ]

Section 568.1 of the Civil code of Quebec stipulates: The court grants an order of placement for the purposes of an adoption in accordance with the application filed and with the consents given , if any were required. The court may not grant an order of placement for the purposes of an adoption with recognition of a pre-existing bond of filiation unless it is in the interest of the child to recognize the bond in order to protect a meaningful identification of the child with the parent of origin . (our emphasis) [ 4 ] Thus, the issues are: 1.

Do adoption consents signed by parents “with recognition of a pre-existing bond of filiation” in regard to a one-day-old child respect the letter and spirit of the law? 2. If the answer is no, can the Court nonetheless grant the Application because it is in the child’s best interest? [ 5 ] The relevant facts are as follows. [ 6 ] The child’s biological parents began to seriously consider giving the child up for adoption during the pregnancy. They met various

professionals, including the Director, to discuss the matter. Throughout the pregnancy, both biological parents loved and spoke or sang to the “child” and developed a bond with her. After the child’s birth, they showed their affection for her through hugs, kisses and a letter they wrote for her.

Their decision to follow through with the adoption was made with her best interest in mind. [ 7 ] When the general adoption consents were signed the day following her birth, little consideration or discussion took place between the Director and the biological parents as to whether it should be “with” or “without” recognition of the pre-existing bonds of filiation.

In the end, the general adoption consent form used was ticked-off at “with” recognition of the pre-existing bonds of filiation. [ 8 ] It is not clear if the biological parents would have signed adoption consents had the Director required that they be “ without recognition of the pre-existing bonds of filiation”. [ 9 ] It is only later on that the legal issue was raised as to whether or not the Director should have accepted that the biological parents sign adoption consents “ with recognition of the pre-existing bonds of filiation” regarding a one-day-old infant.

Although informed that this was legally sketchy, the Director decided to carry on with the consents as they were signed rather than seek new ones (“without” recognition) or pursue another legal avenue (like filing a Declaration of admissibility for adoption). [ 10 ] It should be mentioned that the day following the adoption consents were signed, the two-day- old child was entrusted to the adopters, where she remains.

The child is thriving in the home and the adopters have every intention of completing the adoption process as quickly as possible, a plan which is fully supported by the Director as well as by the evidence submitted. [ 11 ] The Director concedes that the terms used in the Civil code appear to require that there have been some form of meaningful bond between the child and her biological parents in order for the Court to grant the current application.

The Director’s main argument is that despite the child being only one-day-old at the time the adoption consents were signed, she had benefitted in utero from her parents’ love and attention and had therefore been able to form a meaningful identification to them. [ 12 ] The Court cannot subscribe to this argument. [ 13 ] It should first be pointed out that the purpose behind the concept of “pre-existing bonds of filiation” relates essentially to the adoptee’s birth certificate and surname .

More specifically, when the Court grants an order of placement with recognition of pre-existing bonds of filiation (towards one or both of the parents), those parents’ names will be added to the child’s birth certificate after the final adoption has been pronounced. [1] As well, at the time the final adoption is pronounced, the child can legally be assigned surnames that include those of his birth parents in regard to whom the Order of placement recognized a pre-existing bond of filiation. [2] One can think that the child could then potentially pass on his original surname to his own children. [ 14 ] In any event, whether the adoption is “with” or “without” recognition of the pre-existing bonds of filiation, the end-result of the adoption is the same in that the child no longer belongs to his family of origin. [3] 1.

Do adoption consents signed by parents “with recognition of a pre-existing bond of filiation” in regard to a one-day-old child respect the terms and spirit of the law? [ 15 ] The terms used in the law [4] in regard to an adoption “with recognition of the pre-existing bonds of filiation” are clear. By stating that the objective is to protect a pre-existing identification of the child with his parents , the Legislator clearly has in mind cases of older children whose existing bond with their parent(

s) is significant for them . It is the child’s bond to the parents that is important, not the parents’ bond to the child. [ 16 ] Although to our knowledge there is no case law on this matter, our

interpretation of the law is confirmed by the parliamentary debates held in the National Assembly when this bill was being studied.

Indeed, according to the Minister of justice of the time, consents signed with recognition of the pre-existing bonds of filiation only concern children who have developed a relationship with their parents. [5] Determining if a child has a pre-existing bond is evaluated on a case-by-case basis taking into account the family’s history and the relationship that the child established with his biological parents. [6] This type of consent could even come into play to provide a child who has a bond with his parents with the security of knowing that even once adopted, there will be some form of link with his former identity; it could encourage that child to consent to his adoption if his consent is legally required. [7] The Minister also points to the role of the Director of youth protection in determining the type of consent that should be given. [8] [ 17 ] Indeed, it is the Director’s responsibility under the Youth Protection Act to fully discuss with and explain to the parents (and child) the characteristics of adoptions made “with” or “without” recognition of a pre-existing bond of filiation. [9] As mentioned earlier, it appears that this was not done in our case.

Had it been done, the Director may well have realized then that they were heading down the wrong road, that an adoption consent cannot be signed “ with recognition of the pre-existing bonds of filiation” unless it serves “ to protect a meaningful identification of the child with the parent of origin”. [ 18 ] Clearly, this type of adoption consent does not apply to a one-day-old child, no matter how loving and demonstrative the biological parents were during the nine month gestation period and first day of life.

It is the child’s perspective that counts. [ 19 ] If this concept of a ‘pre-existing identification of a child to his parents’ was to apply to a new-born, one can only assume that it would apply to essentially all children, in which case the Legislator would have introduced and defined this concept for no reason. Yet, we know that one of the principles of the

interpretation of statutes is that the Legislator does not speak needlessly. [ 20 ] The law is clear that the Court can only grant the Order of placement according to the consents that were signed by the biological parents. In addition, the Court cannot grant an Order of placement with recognition of the pre-existing bonds of filiation unless it is to protect a pre-existing identification of the child for his biological parents, which is not the case here.

[ 21 ] Thus, in answer to the first question, the Court concludes that adoption consents signed by parents “with recognition of a pre-existing bond of filiation” in regard to a one-day-old child do not respect the letter and spirit of the law . [ 22 ] However, this 17-month-old child has been with the adopters since she was two days old and is thriving. This begs the next question: 2.

Can the Court nonetheless grant the application because it is in the child’s best interest? [ 23 ] It is true that all decisions regarding children must be made in their best interest [10] , especially in matters of adoption. [11] [ 24 ] However, the law also dictates that “no adoption may take place except … on the conditions prescribed by law”. [12] This is particularly true in matters related to adoption given that adoption is of public order. [13] [ 25 ] In fact, the purpose of the Order of placement is precisely to ensure that the conditions prescribed by law have been respected: “Before granting an order of placement, the court ascertains that the conditions for adoption have been complied with.” [14] [ 26 ] The Legislator could have provided an exception that would have allowed the Court to grant the Order of placement despite the problem we identified earlier.

The Legislator did exactly this in regard to certain anomalies in international adoption cases by stating that despite these anomalies, the Order of placement could still be granted “for serious reasons and if the interest of the child demands it.” [15] However, there is no such exception in regard to the non-respected legal requirement in our case. [ 27 ] For these reasons, the Court finds that it cannot circumvent its conclusion on the first question and grant the Order of placement based on the child’s best interest. [ 28 ] Consequently, the Court dismisses the application without costs. __________________________________ CLAUDE LAMOUREUX, J.C.Q.

Signed on September 23rd, 2021 M e Isabelle F. Loranger Attorney for the Applicant and Co-Applicants Date of hearing: September 8, 2021 CL/nl