2016 BCSC 842 A.A.A.M. v Director of Adoption

8/17/2019 2016 BCSC 842 A.A.A.M. v Director of Adoption

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5/15/2016 2016 BCSC 842 A.A.A.M. v. Director of Adoption

http://www.courts.gov.bc.ca/jdb-txt/sc/16/08/2016BCSC0842.htm

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: A.A.A.M. v. Director of Adoption, 2016 BCSC 842

Date: 20160512Docket: S159020

Registry: Vancouve

In the Matter of the Adoption Act , R.S.B.C. 1996, c. 5and Amendments Thereto

And in the Matter of the Judicial Review Procedure Act ,R.S.B.C. 1996, c. 241

and Amendments Thereto

Between:

A. A. A. M.Petitione

And:

Director of AdoptionResponden

The names of the parties, the child, and the prospective adoptive parents have been replacedby initials for publication purposes.

Before: The Honourable Madam Justice Young

Reasons for Decision

Counsel for Petitioner: J. ShraggeD. Liu, Articled Student

Counsel for Respondent: L. GreatheadK. Chewka

Place and Date of Hearing: Vancouver, B.C.March 8, 2016

Place and Date of Judgment: Vancouver, B.C.May 12, 2016

INTRODUCTION

[1]

The petitioner in this matter, whose name I abbreviate to “A.M.”, has applied for judicial


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http://www.courts.gov.bc.ca/jdb-txt/sc/16/08/2016BCSC0842.htm 2

review of a decision made by the Director of Adoption (the “Director”) to place A.M.’s biological

child, “O”, for adoption with prospective adoptive parents “T.P.” and “D.P.” (collectively the “P

Family”) who are residents of Alberta (the “Placement”). The petitioner says that the Director’s

placement of O for adoption in Alberta was ultra vires the geographic limits of her express

authority granted under the Adoption Act, R.S.B.C. 1996, c. 5 [ Act ] and extended the reach of

the Act beyond the geographic limits of the province’s legislative competence.

[2]

This application for judicial review is brought pursuant to s. 2(b) of the Judicial Review

Procedure Act , R.S.B.C. 1996, c. 241 [JRP Act ]. A.M. seeks the following remedies:

a) a declaration that the Placement was ultra vires the Director’s jurisdiction under and

expressly contrary to s. 5(2) of the Adoption Act and s. 92 of the Constitution Act,

1867 ;

b) further, or in the alternative, an order setting aside the Placement;

c)

in the further alternative, an order in the nature of certiorari , quashing the Placement;and/or

d)

an order in the nature of prohibition, prohibiting the Director from consenting to O’s

adoption by the P Family so long as T.P. and D.P. are not residents of British

Columbia.

FACTS

[3]

The material facts related to the adoption process for O are conveniently summarized in

chronological order by the Director in her response to the petition. The petitioner only takesissue with two points which I will set out below:

1. On December 8, 2009, [D.C.R.] (the “Birth Mother”) gave birth to [O].

2. On December 10, 2009, the Birth Mother signed a birth parent pre‑placement

agreement, which transferred care and custody of [O] to [the Director].

3. On December 18, 2009, the Birth Mother swore an affidavit consenting to [O]’s adoption.Upon the Birth Mother’s consent to adoption, pursuant to section 24 of the Adoption Act ,R.S.B.C. 1996, C.5 [the “ Act” ], the Director became guardian of [O] and the PublicGuardian and Trustee became O’s property guardian.

4. [A.M.] was not named by the Birth Mother as the birth father on [O]’s birth certificate.However, DNA testing confirmed his paternity in January 2010.

5. In April 2010, the Director learned that the Birth Mother had another child, M, born in

2006. M is the half ‑sister of [O]. M has been cared for by [the P Family], who reside in

Alberta, since she was 6 months old. The [P Family] have private guardianship respectingM. Upon learning that the Birth Mother had given birth to [O], the [P Family] expressed aninterest in adopting [O].

6. On May 13, 2010, Shelley Hamilton, an adoption worker with the Ministry of Childrenand Family Development (the “Ministry”) wrote to Sandy Worobec of the North Central

Alberta Child and Family Services Authority, and informed her that the [P Family was]


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interested in adopting [O] and requested that a home study/assessment be completed bythe Albertan authorities.

7. In August 2010, the Albertan authorities conducted a home study to determine if [T.P.and D.P.] were suitable prospective adoptive parents for [O]. On August 27, 2010, after thecompletion of the home study, the Albertan authorities recommended [O] be placed for adoption with the [P Family].

8. On September 1, 2010, and in follow-up to a conversation had on August 17, 2010, theDirector provided [A.M.] with written notice of an intention to place [O] for adoption with the

[P Family].9. On September 9, 2010, the [P Family] acknowledged receipt of a number of documents

related to the health and well‑being of [O] and declared they were interested in adopting [O]

and committed to providing her with a secure and loving home.

10. On September 13, 2010, the [P Family] and Director signed an adoption placementagreement, and [O] was placed for adoption with the [P Family].

11. On September 13, 2010, the [P Family] signed a notice of placement stating that onSeptember 13, 2010 [O] had been placed in their home for adoption. [O] has continued tolive with the [P Family] and her half-sister M since being placed in Alberta in September 2010.

12. On February 25, 2011, [A.M.] commenced an action seeking custody and guardianshipof [O] (the “Guardianship Action”). The trial in the Guardianship Action was scheduled for ten days and commenced before the Honourable Madam Justice Holmes on October 29,2012. On November 9, 2012, the tenth day of the trial, the trial was adjourned to November 26, 2012 for continuation. Over the next two years, various continuation dates for theGuardianship Action were scheduled and adjourned at [A.M.’s] request.

13. The Guardianship Action re-commenced from March 17 to March 24, 2014.

14. On October 1, 2014, the trial decision in the Guardianship Action was released, and[A.M.’s] application for guardianship and parenting time was denied. However, the Courtgranted an order for contact between [AM] and [O].

15. On October 31, 2014, [A.M.] filed an appeal. The appeal was heard on April 14, 2015and the Court of Appeal’s judgment was released on May 19, 2015.

16. The appeal was allowed in part * and [AM] was declared to be a joint guardian of [O].The Court of Appeal also confirmed that pursuant to section 24(1) of the Act , the Director was also a guardian of [O]. Further, the Court of Appeal held that if the two guardianswere, within 30 days of the appellate order, unable to reach agreement concerning theallocation of parenting time and parental responsibilities, the matter was to be remitted tothe Supreme Court for an order under section 45 of the Family Law Act , S.B.C. 2011, c.25. In the interim, the Court of Appeal ordered that the Supreme Court order allowing[A.M.] contact will continue.

17. The guardians of [O] have not reached an agreement and the Director has applied for

an order regarding the allocation of parental responsibilities for, and parenting time with,[O]. However, on November 18, 2015 the Court ordered that a section 211 report beprepared pursuant to the Family Law Act . The report has yet to be completed. OnDecember 14, 2015 [A.M.] applied to the Court seeking increased parenting time.However, Madam Justice Dardi denied the relief sought stating that without the benefit of asection 211 report she would not make the order sought by [A.M.]

[4]

[AM] takes issue with the statement that the appeal was allowed in part. I agree with that

statement. The petitioner did not succeed in his appeal related to the birthmother’s consent.


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[5] On December 14, 2015, AM applied to the Court for increased parenting time. Madam

Justice Dardi adjourned AM’s application pending the release of the s. 211 report.

[6]

The P Family plans to start the process of applying for an adoption order for O. Because

the P Family resides in Alberta, they will be applying under the Child, Youth and Family

Enhancement Act , R.S.A. 2000, c. C-12, Part 2.

RELEVANT STATUTORY PROVISIONS

[7]

The purpose of the Act is set out in s. 2 which provides:

2. The purpose of the Act is to provide for new and permanent family ties through adoption,giving paramount consideration in every respect to the child’s best interests.

[8]

The best interests of the child are set out in s. 3 and include, inter alia, the importance of

continuity in the child’s care, the importance to the child’s development of having a positive

relationship with a parent and a secure place as a member of a family, and the quality of the

relationship the child has with a parent or other individual and the effect of maintaining that

relationship.

[9]

Part 2 of the Act sets out the process leading to adoption, and includes s. 5(2), the

provision that is primarily at issue in these proceedings:

Division 1 — Placement for Adoption

Who may place a child for adoption

4. (1) The following may place a child for adoption:

(a) a director who

(i) has care and custody of the child under section 23, or

(ii) is the guardian of the child under section 24;

(b) an adoption agency;

(c) a parent or other guardian of the child, by direct placement in accordance withthis Part;

(d) a parent or other guardian related to the child, if the child is placed with arelative of the child.

…

Who may receive a child for adoption

5. (1) A child may be placed for adoption with one adult or 2 adults jointly.

(2) Each prospective adoptive parent must be a resident of British Columbia.

…

Division 3 — Care, Custody and Guardianship

Transfer of care and custody to a director or an adoption agency

23. A parent who has care and custody of a child may, in writing, transfer care and custodyto a director or the administrator of an adoption agency before


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(a) the child is placed for adoption by the director or the adoption agency, and

(b) the parent consents to the child's adoption.

When a director or an adoption agency becomes guardian

24. (1) When consent to the adoption of a child is given by the parent or other guardianwho requested a director or an adoption agency to place the child for adoption, the director or the administrator of the adoption agency becomes, subject to subsection (2), guardian of the child until an adoption order is made or the consent is revoked.

(2) When a director or an administrator becomes the guardian of a child under subsection(1), the Public Guardian and Trustee becomes the child's property guardian.

Transfer of care and custody by a director or an adoption agency

25. If a director or an administrator has care and custody of a child under section 23 or isguardian of a child under section 24, the director or the administrator may

(a) transfer care and custody of the child to a prospective adoptive parent, or

(b) place the child with a caregiver.

Transfer of care and custody in direct placement adoptions

26. After the conditions in sections 8 (1) and 9 have been met, a parent or other guardian

of a child may, in writing, transfer care and custody of the child to a prospective adoptiveparent.

[Emphasis added.]

[10] Part 3 of the Act sets out the process for applying for an adoption order, and includes the

following:

Who may apply to adopt a child

29. (1) One adult alone or 2 adults jointly may apply to the court to adopt a child inaccordance with this Act.

(2) One adult may apply to the court to become a parent of a child jointly with another parent.

(3) Each applicant must be a resident of British Columbia.

…

Adoption order

35. (1) After considering the post-placement report and other evidence filed under section32, 33 or 34, the court may make an adoption order if it is satisfied that

(a) the child has resided with the applicant for at least 6 months immediately beforethe date of the adoption hearing, and

(b) it is in the child's best interests to be adopted by the applicant.

(2) If the post-placement report was completed more than 3 months before the date of hearing the application, no adoption order may be made until the applicant files with thecourt a written certificate of a director or the adoption agency confirming or modifying thereport.

(3) The court may alter or dispense with the residency requirement after considering anyrecommendation made by a director or an adoption agency.

[Emphasis added.]


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[11] Part 4 of the Act sets out the process for interprovincial and intercountry adoptions, and

provides in part:

Division 1 — Interprovincial Adoptions and Intercountry Adoptions Outside theScope of the Hague Convention

Before a child is brought into British Columbia for adoption

48. (1) Before a child who is not a resident of British Columbia is brought into the Provincefor adoption, the prospective adoptive parents must obtain the approval of a director or anadoption agency.

(2) The director or the adoption agency must grant approval if

(a) the parent or other guardian placing the child for adoption has been providedwith information about adoption and the alternatives to adoption,

(b) the prospective adoptive parents have been provided with information about themedical and social history of the child's biological family,

(c) a homestudy of the prospective adoptive parents has been completed inaccordance with the regulations and the prospective adoptive parents have beenapproved on the basis of the homestudy, and

(d) the consents have been obtained as required in the jurisdiction in which the childis resident.

(3) The director or the adoption agency must preserve for the child any informationobtained about the medical and social history of the child's biological family.

Exceptions

49. Section 48 does not apply to a child who

(a) is brought into British Columbia for adoption by a relative of the child or by aperson who will become an adoptive parent jointly with the child's parent, or

(b) is a permanent ward of an extra-provincial agency.

Division 2 — Hague Convention on Intercountry Adoptions…

Convention is law in British Columbia

51. (1) The provisions of the Convention have the force of law in British Columbia as soonas the Convention comes into force in British Columbia.

(2) Subject to subsection (3) and the regulations, the law of British Columbia applies to anadoption to which the Convention applies.

(3) If the law of British Columbia conflicts with the Convention, the Convention prevails.

[12] Part 6 of the Act deals with administrative and legal issues and it provides in part:Minister's authority to make agreements

76. For the purposes of this Act, the minister may make an agreement with any of thefollowing:

…

(b) the government of Canada, the government of a province of Canada or thegovernment of a jurisdiction outside Canada, or an official or agency of thosegovernments;

…


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(d) any other person or persons.

[13]

The parties agree that the legal concept of adoption exists solely as a creature of statute,

and that there is no such thing as “equitable” or “common law” adoption. They agree that the

Act provides a complete code respecting adoptions that occur in British Columbia and that it

cannot and does not speak to the process of adoptions in other provinces.

ISSUES

[14]

AM’s application for judicial review raises the following questions:

a)

What is the appropriate standard of review is for this application?

b)

Was the Placement ultra vires the Constitution Act, 1867 ?

c)

Was the Placement ultra vires the Director’s authority under the Act ?

d)

What remedy should the Court grant if it answers questions (b) or (c) above in the

affirmative?

POSITIONS OF THE PARTIES

The Petitioner

Standard of Review

[15] A.M. argues that his application for judicial review raises a constitutional question about

the extraterritorial reach of the province. Citing Dunsmuir v. New Brunswick , 2008 SCC 9 at

para. 58 [Dunsmuir ], Alberta (Information and Privacy Commissioner) v. Alberta Teachers’

Association, 2011 SCC 61 at paras. 43 and 94 [ ATA], and McLean v. British Columbia

(Securities Commission), 2013 SCC 67 at para. 22 [McLean], AM submits that constitutional

questions are reviewable on the correctness standard.

[16]

Some argument was also raised that this matter involves a true question of jurisdiction. If

that were the case, this judicial review would be conducted on the correctness standard:

Dunsmuir at para. 59.

Whether the Placement was Ultra Vires the Constitution Act, 1867

[17]

A.M. argues that the legislature’s authority to enact the Act is derived from its jurisdiction

over property and civil rights under s. 92(13) of the Constitution Act, 1867 . A.M. submits that

there are geographic limits on the legislature’s power that are expressed in s. 92(13), namely

that the province may only make laws governing property and civil rights in the province. A.M.

submits that when the Director places children for adoption, she is in effect granting the

prospective adoptive parents certain civil rights in relation to the child.


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therefore says that the appropriate standard of review in this case is reasonableness.

Whether the Placement was Ultra Vires the Constitution Act 1867

[24]

As mentioned previously, the Director contends that A.M.’s characterization of the

present issue as a constitutional one is misconceived. Rather, the Director says that the matter

at hand is properly an issue of statutory interpretation. She therefore focused the majority of her

submissions on the appropriate interpretation of s. 5(2) of the Act .

[25]

However, the Director did argue that in making the Placement, she did not extend the

reach of the Act beyond the territorial boundaries of the province, and thus did not act

unconstitutionally. The Director submits that when she placed O for adoption with the P Family,

she was acting as O’s legal guardian. The Director says that in doing so, she did not confer a

core civil right on T.P. or D.P., or grant them any kind of legal status under the Act .

Whether the Placement was Ultra Vires the Director’s Authority under the Act

[26]

The Director submits that the Placement was not ultra vires her authority under the Act ,

and, once placed in its proper legislative context, the Act can be read to confer upon her the

authority to place children for adoption extra‑provincially.

[27]

The Director argues that the paramount purpose of the Act is to facilitate the creation of

new and permanent family in a manner consistent with the best interests of the child placed for

adoption. The Director submits that interpreting s. 5(2) of the Act in the manner proposed by

A.M. would frustrate the Act ’s purpose by preventing anyone with the authority to place a childfor adoption from being able to place a child extra‑provincially, even where doing so would be in

the child’s best interests.

[28]

The Director submits that the residency requirement in s. 5(2) of the Act must be read in

conjunction with the residency requirement in s. 29(3) of the Act . The Director says that the

requirement in s. 5(2) of the Act exists so that children who are placed for adoption are placed

with prospective adoptive parents who are eligible to apply for an adoption order under s. 29.

[29] The Director also argues that Part 4 of the Act , which allows for children from other jurisdictions to be adopted in British Columbia, would be rendered illogical if the Act were read

in a manner that prohibited extraterritorial adoptions.

Remedy

[30]

The Director submits that even if she acted outside of her authority in making the

Placement, the Court should exercise its discretion not to grant the remedy sought by A.M. The

Director argues that the Court ought not to interfere with the Placement because it was made in


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O’s best interests, and has resulted in O being placed in a suitable home.

Analysis

Standard of Review

[31]

I disagree with A.M.’s submission that there is constitutional question or a true case of

jurisdiction which gives rise to a standard of review of correctness. To qualify the issue as a

constitutional question he would have to assert that the legislature did not have the authority to

enact the Act . That is not being argued. What is alleged is that the Director has exceeded her

authority under the Act .

[32]

Therefore, the question before me is: how much deference is the Director entitled to

when interpreting her own Act ?

[33] The law prior to Dunsmuir was clear that the Director was entitled to great deference

when making decisions about what would be in the best interests of children. Thosedeterminations fell directly within her area of expertise and the Courts was cautioned not to

interfere and replace its view for that of the Director unless there was evidence of bad faith or

capriciousness: K. v. HMTQ (BC) & Others, 2003 BCSC 1248 [K.],

[34]

In K., the petitioners challenged a placement decision on grounds relating to the

administrative body’s assessment of the best interests of the children. The petitioners alleged

that the Ministry for Children and Family Development based its decision about where to place

the children on improper and misleading evidence.

[35]

In the present case, A.M. does not challenge the basis of the Director’s decision that the

Placement was in O’s best interest. A.M. challenges the Director’s purported authority to place

children for adoption with prospective adoptive parents who reside outside of British Columbia.

A finding that such a decision is only reviewable with clear evidence of bad faith or

capriciousness would effectively immunize the Director from scrutiny on this issue.

[36]

Judicial review is essential for the preservation of the rule of law. All exercises of public

authority must find their source in law: Dunsmuir , at para 28. There are legal limits to decisionmaking powers and those legal limits are set by the legislature, the common law and the

Constitution.

[37]

The Court exercises its supervisory role not to replace its opinion for that of the

administrative decision maker, but to ensure that the administrative decision maker does not

overstep her legal authority.

[38]

In Dunsmuir , the Supreme Court of Canada reviewed the various standards of review


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and the analytical process employed to determine which standard applies. The Court came to

the conclusion that there ought to be two standards; correctness and reasonableness:

Dunsmuir at para. 34. The Court did not carve out an exception for adoptions.

[39]

The Court described reasonableness as a deferential standard which requires of the

Court “not submission but a respectful attention to the reasons offered” by the decision maker:


[40]

It is clear from s. 4(1) of the Act that the Director has the authority to place children for

adoption with prospective adoptive parents. The question on this application is whether, in

making the Placement, the Director properly exercised the authority granted to her under the

Act . To characterize this issue as a true question of jurisdiction would be to risk falling into the

line of reasoning that the Supreme Court of Canada cautioned against in ATA at paras. 33-34:

[33] …I reiterate Dickson J.’s oft-cited warning in Canadian Union of Public Employees,Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should not be

alert to brand as jurisdictional, and therefore subject to broader curial review, that whichmay be doubtfully so” (p. 233, cited in Dunsmuir , at para. 35). …Experience has shownthat the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, thisCourt has not identified a single true question of jurisdiction…

[34] The direction that the category of true questions of jurisdiction should be interpretednarrowly takes on particular importance when the tribunal is interpreting its home statute. Inone sense, anything a tribunal does that involves the interpretation of its home statuteinvolves the determination of whether it has the authority or jurisdiction to do what is beingchallenged on judicial review. However, since Dunsmuir , this Court has departed from thatdefinition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time hascome to reconsider whether, for purposes of judicial review, the category of true questionsof jurisdiction exists and is necessary to identifying the appropriate standard of review.However, in the absence of argument on the point in this case, it is sufficient in thesereasons to say that, unless the situation is exceptional, and we have not seen such asituation since Dunsmuir , the interpretation by the tribunal of “its own statute or statutesclosely connected to its function, with which it will have particular familiarity” should bepresumed to be a question of statutory interpretation subject to deference on judicialreview.

[41]

The B.C. Court of Appeal has acknowledged that Dunsmuir changed the landscape of

the law of judicial review in Canada: Western Forest Products Limited v. HMTQ, 2009 BCCA

354 at para. 21, leave to appeal to SCC ref’d [2009] S.C.C.A. No. 413. Absent a statutory

requirement such as the one found in the Administrative Tribunals Act , S.B.C. 2004, c. 45,

which does not apply in this case, there are now only two standards of review in Canada:

reasonableness and correctness.

[42] In Western Canada Wilderness Committee v. British Columbia (Forests, Lands and

Natural Resource Operations), 2014 BCSC 808, Mr. Justice G.P. Weatherill considered whether

the Dunsmuir case applies to both administrative and adjudicative decisions. He noted that the

Federal Court in Georgia Strait Alliance v. Canada (Minister of Fisheries & Oceans), 2012 FCA


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40 [Georgia Strait Alliance] distinguished Dunsmuir because the Minister was acting in an

administrative capacity – not as an adjudicator. It held that the Court was better equipped and

that the Minister had no discretion under the statute to interpret it. Apply a correctness

standard, it found that the Minister’s decision was unlawful.

[43] Weatherill J. noted that subsequent decisions of this Court have not followed Georgia

Strait Alliance albeit because the facts differed: see, e.g., Society of the Friends of StrathconaPark v. British Columbia (Environment), 2013 BCSC 1105; Friends of Davie Bay v. Province of

British Columbia, 2012 BCCA 293.

[44] He said that the legal trend since Dunsmuir that the more discretion the home or related

statute gives the administrative decision maker or the more the decision is related to policy, the

more likely it is that the deferential reasonableness standard applies. In fact, it will usually be

automatic.

[45] The Supreme Court of Canada provided more guidance in McLean which dealt with the

B.C. Securities Commission’s interpretation of when a limitation period for sanctioning a

member for misconduct should commence. The Court found that the standard of review for this

administrative decision was reasonableness and provided these directions:

[21] ...an administrative decision maker's interpretation of its home or closely-connectedstatutes “should be presumed to be a question of statutory interpretation subject todeference on judicial review”...

[31] The modern approach to judicial review recognizes that courts “may not be as wellqualified as a given agency to provide interpretations of that agency's constitutive statute

that make sense given the broad policy context within which that agency must work”...

[32] In plain terms, because legislatures do not always speak clearly and because the toolsof statutory interpretation do not always guarantee a single clear answer, legislativeprovisions will on occasion be susceptible to multiple reasonable interpretations ...Thequestion that arises, then, is who gets to decide among these competing reasonableinterpretations?"

[33] The answer, as this Court has repeatedly indicated since Dunsmuir, is that theresolution of unclear language in an administrative decision maker's home statute is usuallybest left to the decision maker. That is so because the choice between multiple reasonableinterpretations will often involve policy considerations that we presume the legislaturedesired the administrative decision maker -- not the courts -- to make. Indeed, the exercise

of that interpretative discretion is part of an administrative decision maker's 'expertise'."

[Emphasis in original]

[46] Recently, the issue of the standard of review for an adoption decision was raised but not

decided in an interim application before Madam Justice Newbury of the British Columbia Court

of Appeal in L.M. v. British Columbia (Director of Child, Family and Community Services), 2016

BCCA 109 [L.M.]. The circumstances of that case are similar to the one before me in some

respects, notably in that the Director in L.M. seeks to place a child with prospective adoptive

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?A=0.42147896829993725&bct=A&service=citation&risb=21_T23972617801&langcountry=CA&linkInfo=F%23CA%23BCCA%23sel1%252012%25year%252012%25decisiondate%252012%25onum%25293%25http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?A=0.6633663120791093&bct=A&service=citation&risb=21_T23972617801&langcountry=CA&linkInfo=F%23CA%23BCSC%23sel1%252013%25year%252013%25decisiondate%252013%25onum%251105%25


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parents who reside in another province where the child’s siblings also reside.

[47]

At paras. 13-16 and 18, Newbury J.A. appeared to question whether the standard of

review applied in K. was appropriate in light of Dunsmuir . She also cautioned about the

apparent applicability of s. 5(2) of the Act and concluded that these and other issues were

significant and worthy of serious consideration.

[48]

Unfortunately the Court of Appeal has not yet heard the appeal in L.M. and so I must

address these issues prior to its ruling. Time is of the essence here because the Director

intends to consent to the adoption in Alberta so I will render my decision in advance of the L.M.

appeal.

[49]

Because the Director was interpreting her home statute, I find that the presumptive

standard of review in this matter is reasonableness. The party bringing the application bears the

burden of rebutting that presumption. In this case, AM has not discharged that burden. The

Director operates under a discrete administrative regime, and I am unable to find that this is an

“exceptional” case that would justify departing from the presumption: Rogers Communications

Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 at para.

16.

[50] I conclude from my review of the authorities and, in particular, the passages in McLean

which I excerpted above, that the standard of reasonableness is still highly deferential.

Whether the Placement was Ultra Vires the Constitution Act, 1867

[51]

Neither party has alleged that the Placement raises an issue under the Charter . This

case also does not raise a division of powers issue, as the decision under review does not

encroach upon an area of federal competence. The province did enact the Act which governed

property and civil rights in the province and did not extend the Act beyond the province.

[52]

I also reject the argument that the placement of a child with prospective adoptive parents

in Alberta granted civil rights to those parents. No core civil rights or status was conveyed to the

P Family. By agreement they have been the caregivers of O, and as such they have the duty of

providing day‑to‑day care for her and some limited guardianship rights. Presumably that

agreement could be cancelled at any time although I do have concerns about how the Director

could enforce the return of O now that she is out of the Director’s reach.

Whether the Placement was Ultra Vires the Director’s Authority under the Act

[53]

The issue arising on this judicial review is properly described as a question of whether

the Director erred in interpreting her home statute in a way that authorized her to place O with


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prospective adoptive parents who were not residents of British Columbia. I must determine

whether the Director’s interpretation of her home statute was within the reasonable range of

alternatives open to the Director, even if a competing reasonable interpretation exists: McLean

at para. 41.

[54] A decision maker may not exercise authority not specifically assigned to him or her:


[55]

The plain language of s. 5(2) of the Act unambiguously requires children to be placed

with prospective adoptive parents who are resident in British Columbia.

[56]

The Director submits that this plain language interpretation will frustrate the purpose of

the Act . She submits that the modern approach to statutory interpretation is to interpret the

entire statute in context and harmony with the scheme of the legislation.

[57]

The intent of the Act is to legislate adoptions that will occur within British Columbia. Thepurpose of the Act is to provide for new and permanent family ties through adoption giving

paramount consideration to the best interest of the child.

[58]

Section 4 defines who may place a child for adoption. It includes a director or an

adoption agency or a parent or other guardian. Adoption is not defined nor does s. 4 limit the

power of placement to adoptions to be completed in British Columbia. However s. 5(4) defines

who may receive a child for adoption and it restricts prospective parents to residents of British

Columbia.

[59] The Director says that it would be absurd to prevent her from placing a child for adoption

outside of British Columbia. I do not agree. The Director has no statutory authority outside

British Columbia to control the process of adoption and presumably the Director is concerned

that parents are suitable to adopt B.C.’s children and that they are well prepared to do so. If the

adoption breaks down, the Director would want the authority to remove the child. Once a child

is placed out of the province, the Director has no reach to retrieve the child.

[60] This situation is analogous to the Ewachniuk v. Law Society of British Columbia (1998),46 B.C.L.R. (3d) 203 (C.A.) [Ewachniuk ] decision where the Law Society of British Columbia

was trying to conduct a hearing outside of the province. The Court found that if the Law Society

did so, it would be unable to exercise its powers pursuant to the Inquiry Act, R.S.B.C. 1996

c. 224 including the powers of subpoena and contempt. The Law Society would therefore have

no power to compel attendance and to require the production of documents.

[61]

An argument was made in Ewachniuk that these issues were of no concern because


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attendance at the hearing by the witnesses was going to be voluntary. The Court found at

para. 29 that the jurisdictional issue raised in that case could not be resolved by consent. A

tribunal cannot confer on itself any power of jurisdiction beyond that bestowed by its constating

legislation: Ewachniuk at para. 27.

[62] In the case before me, the Director has accommodated her lack of jurisdiction in other

provinces by entering into interprovincial agreements. Those agreements do not give her anypower or authority over adoptions outside of British Columbia and do not confer on her a power

of jurisdiction beyond that bestowed by the Act .

[63] Division 1 of Part 4 of the Act provides for interprovincial adoptions and intercountry

adoptions that fall outside of the scope of the Hague Convention on Protection of Children and

Cooperation in Response to Intercountry Adoption (the “Hague Convention”). It details the

process that must occur before a non‑resident child is brought into B.C. for adoption by a family

in B.C.

[64]

This would have been the perfect place for the legislature to include a mechanism for

non‑resident adoptive parents to meet the requirements to adopt B.C. children, but the Act is

silent in that regard.

[65] I disagree with the Director’s submission that it would be illogical to interpret the Act in

such a way that would allow children born outside of B.C. to be placed for adoption in B.C. but

to prohibit a child born in B.C. from being placed for adoption outside B.C.’s territorial

boundaries. The logic is that B.C. remains in control of overseeing the adoption process toensure that it meets the high standards of the province. Those standards are in place to ensure

that children and parents are prepared for adoption and to ensure success and permanency.

Once the child leaves the province, the Director loses that control. This concept is

contemplated in certain intercountry adoptions where prospective adoptive parents are required

to travel to the child’s country and establish short term residency there and attend Court there

to complete the adoption. This procedure allows that country to oversee the process of

adoption of their citizen children.

[66]

A restriction on placing children from B.C. for adoption extraterritorially does not frustrate

the purpose of Part 4. In fact, Article 28 of the Hague Convention expressly contemplates and

allows for jurisdictions to operate their adoption regimes non-reciprocally:

The Convention does not affect any law of a State of origin which requires that theadoption of a child habitually resident within that State take place in that State or whichprohibits the child's placement in, or transfer to, the receiving State prior to adoption.

[67]

As I have outlined above, the Director argues that her interpretation of the Act was


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reasonable and says that the purpose of the Act would be frustrated if her interpretation were

not upheld by this Court. In interpreting the Act , the Director advocates for this Court to apply

Driedger’s purposive approach, which has consistently been endorsed by the Supreme Court of

Canada: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 at para. 30.

[68] Although A.M. agrees that the purpose of the Act is set out in s. 2, he argues that this

purpose is qualified by the territorial limitations of the provincial legislature’s authority. A.M.therefore says that the purpose of the Act is restricted to adoptions that actually take place in

B.C.

[69] In my view, even with the application of the purposive approach to statutory construction,

s. 5(2) of the Act cannot bear the meaning that is urged upon me by the Director. If the

legislature wanted to qualify the requirement in s. 5(2) of the Act , it had the option to do so, as it

did with the six‑month residency requirement in s. 35(3). It did not add such a qualification;

indeed, the language used in s. 5(2) could hardly be more plain.

[70]

I likewise find that interpreting s. 5(2) in the manner proposed by A.M. would not render

s. 76 meaningless. Section 76(b) gives the Minister the authority to make agreements with

governments in other jurisdictions. The power to make agreements with other provinces does

not empower the Director to place children extraterritorially.

[71]

Section 76 expressly provides that such agreements are to be made for the purposes of

the Act , and thus presumably the effect of those agreements must be consistent with the

remainder of the statutory regime. I do not interpret s. 76 as permitting the Director to exceedthe geographic limitations under the Act .

[72]

In arguing that her interpretation of her authority under the Act was reasonable, the

Director submitted that since 1998, more than 60 children who were subject to either the

guardianship of the Director or that of the director under the Child, Family and Community

Service Act , R.S.B.C. 1996, c. 46 have been placed extra-provincially for adoption. She noted

that these adoptions are conducted subject to the Provincial/Territorial Protocol on Children and

Families Moving Between Provinces and Territories - 2011 and the Ministry’s Practice

Standards and Guidelines for Adoption.

[73]

I see no statutory foundation for the Provincial/Territorial Protocol. When questioned

about this counsel said that under s. 76 the Minister is granted authority to make agreements

with the Government of Canada, the government of a province of Canada, the government of a

jurisdiction outside Canada or an official or agency of those governments. This general power

to make agreements is not clear enough in my mind to override a specific jurisdictional

restriction as is contained in s. 5(2). Harkening back to Ewachniuk , the Director cannot confer


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on herself by these agreements or protocols power beyond that bestowed by the legislation.

[74]

Even if the protocol and practice standards relied upon by the Director provide for

extraterritorial adoption, they do not and cannot displace the requirements in s. 5(2) of the Act .

If the legislature had intended that the Ministry’s policies, or indeed, the Minister’s agreements

with other governments, would prevail over the Act , it could have provided for that in the same

way that it did in s. 51(3) with regards to the Hague Convention.

[75]

As a statutory decision‑maker, the Director only has the powers that are granted to her by

her enabling statute and those that are necessarily implied by the object of the statutory regime

ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4.

[76]

Section 5(2) of the Act clearly and unambiguously requires all prospective adoptive

parents to be residents of British Columbia. I therefore conclude that the Director’s

interpretation of the Act , such that it granted her the authority to place O for adoption with

prospective adoptive parents who were not residents of British Columbia, was unreasonable

and ultra vires the Director’s authority under the Act .

[77]

Counsel for the Director further submits that the Director was acting merely as O’s legal

guardian akin to an adoption agency, parent or other guardian. The Director is not a legal

person. She is a creature of statute that has no authority other than what the statute has

provided her under s. 76.1 of the Act. That section gives her jurisdiction throughout British

Columbia in the exercise of the powers and in the performance of the duties and functions

conferred on her under the Act . She is in a different position than a parent is because a parenthas common law rights. The Director does not.

Remedy

[78]

I have found that the Placement was ultra vires the authority of the Director under s. 5(2)

of the Act . I must therefore consider the appropriate remedy to grant in this case.

[79]

I note that even where the petitioner is successful on judicial review, the remedies

granted by the Court are discretionary: Strickland v. Canada (Attorney General), 2015 SCC 37

at para. 37. The Court’s discretion is also reflected in the permissive language of ss. 2 and 7 of

the JRP Act .

[80]

I find that in the present case, A.M. is entitled to a declaration that the Placement was

ultra vires the authority of the Director under the Act .

[81]

I will make an order prohibiting the Director from consenting to the adoption in Alberta

until further order of this Court.


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[82] However, I decline to grant the further and alternative relief sought by the petitioner,

specifically, an order in the nature of certiorari or an order setting aside the Placement. If the P

Family is still willing to act as caregivers for O, then I order that the Director shall not remove

her from their care without further order of this Court. I do note that the P Family has been

caring for O’s sister under a guardianship agreement and not under an adoption order so

hopefully they will wish to continue to care for O.

[83]

If the P Family had made an application to adopt O in British Columbia, I would not

interfere with the Director’s consent giving deference to the Director’s expertise in determining

what is in the best interest of O.

[84]

It has now been more than five years since O began living with the P Family. O began

living with the P Family when she was less than one year old. Any order that would have the

effect of removing O from the P Family, which is likely the only family she can remember living

with, should not be made without clear evidence that doing so would be in O’s best interests.

This petition, heard in Chambers in just one hearing day, without the benefit of viva voce or a

complete body of evidence, is an inadequate forum for such a determination.

[85] Determination of the terms of O’s guardianship shared by A.M. and the Director is still

before this Court. A trial of that issue is expected to be heard by Madam Justice Choi after the

s. 211 report is finalized. This hearing should proceed so that the Court can assess what is in

O’s best interest as it relates to A.M.’s application for parenting time and the sharing of

parenting responsibilities. At that hearing I am certain that the Director will be addressing the

issue of O’s primary care and residency.

SUMMARY

[86] In summary, I find that the Placement was ultra vires the authority of the Director under

the Act and I grant the petitioner a declaration to this effect and I make an order prohibiting the

Director from consenting to the adoption in Alberta or removing O from her residence with the P

Family until further order of this Court. I decline at this time to grant an order in the nature of

certiorari or an order setting aside the Placement.

“Young J.”

Documents

2016 BCSC 842 A.A.A.M. v Director of Adoption