Administrative law – Decisions of administrative tribunals – Director of Adoption; Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter – Legislation – Ultra vires; Remedies – Declaratory relief
Judicial review of decision by the British Columbia Director of Adoption to place a child for adoption with prospective adoptive parents who were residents of Alberta.
 B.C.J. No. 969
2016 BCSC 842
British Columbia Supreme Court
May 12, 2016
The petitioner, the birth father of the child identified as “O”, applied for judicial review of a decision made by the British Columbia Director of Adoption (the “Director”) to place O for adoption with prospective adoptive parents who were residents of Alberta.
The facts relating to the judicial review were as follows. On December 8, 2009, O was born. On December 10, 2009, O’s birth mother signed a birth parent pre‑placement agreement which transferred care and custody of O to the Director. On December 18, 2009, O’s birth mother consented to O’s adoption and the Director became O’s guardian. The petitioner was not named as the birth father on O’s birth certificate; however, DNA testing confirmed his paternity in January 2010. In 2010, the Director learned O had a half‑sister who had been cared for by a family residing in Alberta. The family residing in Alberta was interested in adopting O. That family and the Director signed an adoption placement agreement and O was placed for adoption with the family. The family planned to start the process of applying for an adoption order for O.
The petitioner applied for judicial review challenging the Director’s placement of O with the prospective adoptive family in Alberta. The petitioner argued the placement was ultra vires the Constitution Act, 1867, or was ultra vires the Director’s authority under the Adoption Act, R.S.B.C. 1996, c. 5.
The court disagreed with the petitioner’s submission the application for judicial review raised a constitutional question. To qualify as a constitutional question the petitioner would have had to assert the legislature did not have the authority to enact the Adoption Act. That was not being argued. The petitioner was alleging the Director exceeded her authority under the Adoption Act.
The court held that because the Director was interpreting her home statute, the presumptive standard of review was reasonableness. The petitioner had the burden of rebutting that presumption. The petitioner did not discharge that burden. The court held the Director operates under a discrete administrative regime and this was not an exceptional case that would justify departing from the presumptive standard of review of reasonableness.
The court characterized the issue on judicial review as a question of whether the Director erred in interpreting the Adoption Act in a way that authorized her to place O with prospective adoptive parents who were not residents of British Columbia. Section 5(2) of the Adoption Act states that: “Each prospective adoptive parent must be a resident of British Columbia.” The court held the plain language of s. 5(2) unambiguously requires children to be placed with prospective adoptive parents who are resident in British Columbia. Notwithstanding the plain language of s. 5(2), the Director argued on a purposive interpretation of the Adoption Act it would be absurd to prevent her from placing a child for adoption outside of British Columbia. The court rejected the Director’s argument regarding the interpretation of the Adoption Act.
The court concluded the Director’s interpretation of the Adoption Act, such that it granted her authority to place O for adoption with prospective parents who were not residents of British Columbia, was unreasonable and ultra vires the Director’s authority under the Adoption Act. The court concluded the Director has no statutory authority outside British Columbia to control the process of adoption. Once a child is placed outside of British Columbia, the Director has no reach to retrieve the child. The legislature could have included a mechanism for non‑resident adoptive parents to meet the requirements to adopt British Columbia children, but it did not do so. If the legislature had wanted to qualify the requirement in s. 5(2) of the Adoption Act, it could have done so. Section 5(2) of the Adoption Act unambiguously requires all prospective adoptive parents to be residents of British Columbia.
The court held the appropriate remedies were a declaration the placement was ultra vires the authority of the Director under the Adoption Act and an order prohibiting the Director from consenting to the adoption in Alberta until further order of the court. The court declined, however, to grant an order in the nature of certiorari setting aside the placement. The court concluded that any order that would have the effect of removing O from the family she was residing with in Alberta should not be made without clear evidence that doing so would be in O’s best interests.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.