BH (Re), 2023 ABKB 392

Court of King’s Bench of Alberta Citation: BH (Re), 2023 ABKB 392 Date: 20230626 Docket: AD01 31128 Registry: Calgary In the Matter of The Child, Youth and Family Enhancement Act and in the Matter of the Application by BH and MH for an Adoption Order Regarding the Child O Restriction on Publication SEALED – See the Child, Youth and Family Enhancement Act ,

section 74.1 . The Court's adoption file in this matter is sealed. By Court order or with the consent of the Minister, documents may be available for inspection. No one may publish any information serving to identify a child or guardian of a child who has come to a Minister’s or a director’s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2 .

TAKE NOTE THAT by order of this Court pursuant to the Child, Youth and Family Enhancement Act , s. 74.1 , this judgment will be added to the Court’s judgment database where it will remain, and it will be distributed both in print and electronically to legal publishers and the subsequent sealing of the judgment shall not apply to the judgment database or to legal publishers. The judgment will then be sealed in accordance with the Child, Youth and Family Enhancement Act , s. 74.1 . _______________________________________________________ Endorsement of the Honourable Justice J.T.

Eamon _______________________________________________________ Introduction [ 1 ] The Applicants have applied to adopt the Child. [ 2 ] The adoption application appears in the interests of the Child, who has been introduced to a loving and supportive family who appear well qualified to provide the Child a nurturing home and family and committed to supporting the Child’s heritage. The Child’s mother consents to the adoption.

The evidence indicates she is the only guardian of the Child because the biological father has not taken a role in the child’s life, sought to take a role, or shown interest in the Child. [ 3 ] According to the mother, when the biological father was told of the Child and the mother’s intent to seek an adoption, he said he didn’t care.

[4] The biological father was not served as required by section 64(1)(

g) of the Child, Youth and Family Enhancement Act, RSA2000, c C-12 (the “Act”). The Act requires personal service of the adoption application materials with a notice of objection. The recipientthen may file a notice of objection in the prescribed time, and if none is received by the Clerk’s office the application usually proceeds asa desk application. The Act permits the Court to abridge service, direct other methods of service, or validate a method of service. [5] The Applicants, represented by a licensed adoption agency, applied to dispense with service on the biological father.

The Actdoes not explicitly authorize a judge to dispense. [6] The issues are whether I can and should dispense with service. [7] As to whether I can dispense, Alberta case law conflicts as to whether I have jurisdiction to dispense. For the reasons below,I find I have such jurisdiction. As to whether I should dispense, I will direct one final notice to the biological father’s last known meansof contact.

If there is no response in compliance with my directions, I will either dispense with service or deem service sufficientdepending whether or not the supplemental evidence I am requiring the agency to file (set out in para 27(

e) below) satisfies me thatsending notices to a social media account was likely to have brought the notices to the biological father’s attention. Background [8] The affidavits say that the mother and father had a short interaction. The mother informed the biological father she waspregnant and of her intent to place the baby for adoption. The father responded he did not want anything to do with the baby and did notcare about the adoption.

The mother did not stay in contact and did not have contact information for the biological father except a socialmedia account address that she provided to the adoption agency (the “social media account”). [9] The adoption agency sent a message to the social media account as follows: Hi [biological father’s name redacted], my name is [name redacted] and I am a social worker with [adoption agency name redacted]. I’mworking with [mother’s first name redacted] and she is making an adoption plan. She has named you as the baby’s birth father. I amreaching out to let you know. Can you please message me back?

I would be happy to chat with you in [sic] you have any questions.Thank you for your time. [10] The account holder did not reply. [11] The social media account displays a picture and a full name. The name is that of the birth father. The agency’s affidavitevidence says it checked other sources for possible contact information but found the person’s first and last names are quite common(suggesting phone or name searches likely generated hundreds of potential individuals). The picture wasn’t identified in evidence as alikeness of the biological father.

There is no evidence whether the account is in active use such as the account holder actually accesses it,uses it, or posts in it, or when it appears to have been last used. Jurisdiction to dispense with service [12] The Act permits the Court to shorten the time for service, direct the manner of service, or approve the manner of service thatwas made (Act, section 64(8)). [13] Case law conflicts whether the Court has jurisdiction to dispense with service.

Some longstanding authority says that theLegislature intended only to allow the Court to give directions on service but not to dispense with it; in other words section 64(8) is acomplete statutory code addressing service in adoption applications (Re DNH, 2006 ABQB 681; JS v JR, 2006 ABQB 940). Other casessay dispensing with service is permitted (Re JF, 2003 ABQB 1066; Re DRH, 2004 ABQB 48). A recent reported case sided with theproposition that the Court cannot dispense with service (Re E R M, R GM and M M M (Adoptions), 2022 ABQB 344 ).

In myexperience, the Court has dispensed with service in appropriate cases, though seldom are such directions addressed in written decisions. [14] The Court Rules and Forms Regulation, Alta Reg 39/2002 (the “Regulation”),

section 2 provides that in any matter notprovided for in the Act or the regulations under it, the Court may follow the Alberta Rules of Court and the procedures of the Court ofKing’s Bench and make various other directions such as varying a rule of practice or procedure. [15] The Alberta Rules of Court provide for validating service (Rule 11.27), substitutional service where personal service isimpractical (Rule 11.28) and dispensing with service where service is impractical or impossible (Rule 11.29). [16] In DNH, Watson J (now JA) held that the Regulation did not authorize dispensing with service. All aspects of service weregoverned by

section 64 of the Act, and the Regulation cannot undermine the specific statutory provisions. [17] DNH further held that the service requirement can be satisfied where the biological father is not formally provided with theapplication materials, or as I read the DNH case, not served with any written materials. Proof of actual awareness of the plan and theprocess might suffice to justify an order under section 64(8) validating service. [18] In DNH the evidence showed the mother told the father of the pending adoption and the father said he agreed to it.

Theevidence demonstrated the father’s detailed knowledge of the adoption plan, and included a copy of the father’s written agreement to andsupport of the plan. The father had met the proposed adoptive parents and met with the social worker conducting the adoption. Thewriting signed by the father included that he did not want to be notified of the application. The evidence showed he understood hisconsent to the adoption was required by law. The information known to the biological father satisfied the objectives of the mandatoryservice requirements of the Act. Watson J held that service was effected on the father.

Watson J noted he was not dealing with thequestion of what happens in a situation where there has been no notice whatsoever to a birth parent (ibid at para 48).

[ 19 ] In the present case, the short note that the adoption agency sent to the social media account could not provide the biological father with information of the actual adoption plan as the biological father had received in DNH .

It might be said he waived notice when he told the mother he did not care what she did about the Child, but one might question whether he had sufficient information to effect a valid waiver of statutory requirements (assuming they are waivable). [ 20 ] I am concerned that the line of authority not permitting dispensations of service would severely hamper some adoptions to the detriment of the child’s best interests.

As with any litigation, there are foreseeable situations where a party cannot be served with an adoption application because the whereabouts or the identity of the biological father are unknown. [ 21 ] The Legislature provided the power to make regulations necessary to carry out the intent and purposes of the adoption provisions ( Act ,

section 104 ).

Section 2 of the Regulation is such a regulation, and it permits the Court to apply the Rules of Court in all proceedings under the Act . [ 22 ] I conclude that

section 2 of the Regulation permits the Court to apply Rule 11.29. Although the Regulation does not permit the Court to override the mandatory requirements of the Act and the Court cannot rewrite the Act to cure a possible deficiency, there is a clear distinction between rules for alternative methods of service or validating service, and dispensing with service where a party’s identity or whereabouts are not reasonably ascertainable. Section 64(8) deals with the former, but not explicitly with the latter.

Given the strong focus of the Act on a child’s best interests, and that precluding a dispensation of service in exceptional cases where the biological father’s identity or whereabouts cannot reasonably be ascertained would frustrate the legislated objective of the adoption process, section 64(8) should not be read to impliedly exclude relief in cases where dispensing with service is necessary. “An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects” (

Interpretation Act , RSA 2000, c I-8,

section 10 ). [ 23 ] Notice of court applications to the required parties is a fundamental civil right and derogating from notice should be limited to situations of necessity. Rule 11.29 expresses an appropriately stringent standard for dispensing with notice. [ 24 ] Rule 11.29 provides: 11.29(1) On application, the Court may make an order dispensing with service, inside or outside Alberta, if service of a document by a method prescribed by these rules is impractical or impossible.

(2) The application must be supported by an affidavit (

a) setting out that all reasonable efforts to serve the document have been exhausted or are impractical or impossible, (

b) stating why there is no or little likelihood that the issue will be disputed, and (

c) stating that no other method of serving the document is or appears to be available. [ 25 ] In the present case, I cannot say that the short message that the adoption agency sent to the social media account satisfies the notice requirements of the Act .

Even if the biological father received the message, it did not provide him with notice of the proposed adoption arrangement, notice that the mother had finalized her intention to proceed with a plan, any offer that a copy of the application materials would be provided to him, or with a notice of objection that would enable him to object if he wished. [ 26 ] In the present case, sending a more detailed notice to the social media account, even if no longer actively checked by the biological father, would be a reasonable effort to attempt service on him. There is no other known way to try to contact him.

However, it would not be reasonable to transmit the sensitive and intimate materials of the adoption application (including Applicants’ names, address, family details, family history, and child’s name and date of birth) to a social media account. We do not know who has access to this account, assuming it actually is active. We do not know what privacy protections are in place for the account. [ 27 ] Consequently, I direct: (

a) The adoption agency shall send notice to the social media account of the following: (

i) A court application is pending for the adoption of the child of the mother and the mother identified him as the birth father. The mother shall be named using her first name only, without her last name. The child shall not be named. The month and year of birth shall be included. The day of the birth shall not be disclosed.

The action number of this proceeding must be provided. (ii) The biological father may contact the agency if he wishes to obtain further information of the application. (iii) The contact particulars of the agency including telephone number and street address. (iv) The Court has ordered that if he objects to the adoption he must file a notice of objection within 14 days of the agency’s notice being sent to the social media account, with the Clerk of the Court of King’s Bench at the Calgary Courts Centre, 601 – 5th St SW, Calgary AB. (

v) The agency must provide the biological father either a copy of a notice of objection or if not practicable to transmit a copy of same, information that enables the father to access a notice of objection online. He must be instructed to include in any notice of objection the Court’s action number and the title “In the Matter of The Child, Youth and Family Enhancement Act and in the Matter of the Application by BH and MH for an Adoption Order Regarding the Child O”. Any notice of objection provided him by the agency must use the same title. (

b) Any address for further information or service expressed in the notice shall be the adoption agency on behalf of the Applicants. The Applicants’ direct contact particulars and other personal information shall not be disclosed in the notice.

(

c) The Clerks must accept a notice of objection for filing bearing the correct action number notwithstanding it is titled using pseudonyms. (

d) The adoption agency must file an affidavit of service confirming compliance with the foregoing directions. (

e) The affidavit of service further must contain supplemental information, if available, whether the communications sent to the social media account brought or were likely to have brought the information therein to the attention of the biological father and explaining why . This ought to include as much information as possible concerning the identity of the account holder and whether the account was in active use around the time of attempted service of both notices. If the agency is unable through reasonable inquiries to ascertain whether or not communications through the social media account are likely to have brought the notices to the biological father’s attention, they are to say so. (

f) Upon 15 days from the date of service, the adoption agency must inform the Clerk’s Office of any responses received. The Clerks will then return the application including affidavit of service to me and advise whether or not any notice of objection was received by the Clerk’s office. [ 28 ] Following receipt of the supplemental evidence, I will either dispense with service under the Regulation , or validate service under section 64(8), as appropriate.

Apart from this service issue, the application is in order and I do not require any supplemental information in respect of any of the other statutory requirements for adoption including the request to dispense with consent. [ 29 ] For future reference it would be preferable if the adoption agency when seeking directions on service, would provide the information in Rules 11.27, 11.28 and 11.29 of the Alberta Rules of Court.

An affidavit seeking an alternative method of service usually includes evidence that the method of service used brought or was likely to have brought the document to the attention of the person to be served, or stating why the alternative method of service is likely to bring the document to the attention of the person to be served. This might include, where validation of electronic service is sought or electronic service is proposed, as much information as possible concerning the identity of the account holder and whether the account was in active use around the time of attempted service.

Heard (desk application) on the 25 th day of June, 2023. Dated at the City of Calgary, Alberta this 26 th day of June, 2023. J.T. Eamon J.C.K.B.A. Appearances: None (desk application)