The respondent DT became involved with LT in 1991 and dated her once or twice. On one occasion they had sexual intercourse. At no time did LT tell him that she was pregnant nor did he at any time ask her. That same year she gave birth to his child, a girl, and DT claims to have first learned of this through another party some twenty days later. DT never stood in loco parentis to the child or contributed to her support or that of her mother.
Prior to the child's birth, LT met with the representative of the appellant, The Children's Aid Society and Family Services of Colchester County to make arrangements for placement for adoption of the child after birth. She advised the Agency's social worker dealing with the matter that DT was "aware of her pregnancy but had shown no interest in helping her with a plan for the child". She also told the social worker that she had not had a discussion with DT about her plan to place the child for adoption. The Agency made no effort to contact DT about the matter.
LT executed an interim arrangement placing the child in the care of the agency pending execution of an adoption agreement. At the same time she signed a statutory declaration stating that DT was the father of the child. The child was placed with the adopting parents and a notice of proposed adoption was forwarded to the Minister of Community Services.
As soon as DT learned of the birth of the child, he contacted LT who advised him that the child was placed for adoption. Following this, he immediately sought legal advice with a view to obtaining custody. He made an application for custody in the Family Court, but the application was dismissed holding that he had no jurisdiction since the child had been placed for adoption and the notice thereof had been filed in accordance with the provisions of the Family Maintenance Act as they stood at the time.
The chambers judge allowed the application of the father based on parens patriae jurisdiction and granted him custody, which the Agency appealed.
- Who is a "parent"?
Chipman, writing for the court, allowed the appeal and restored custody to the adoptive parents. No evidence was presented by the father that the best interests of the child would be served by review of the original decision; he stood merely as a "casual fornicator" to the child; more than a mere act of conception is required. There is little acknowledgement of the fact that the father had not been informed of the child. By the time of this hearing the child had been with the adoptive parents for 8 months, so it was not seen as being in the child's best interest to uproot her.
- Failing to take an interest in the pregnancy and birth of a child will prejudice an application for custody.
- A "parent" must have more than a biological connection to a child; see s. 3(1)(r)(ii).
Subsequent amendments to the Child and Family Services Act have created a statutory waiving period of 15 days after birth before a parent can enter into a s. 68 agreement (ss. 68(2) and 74(4)). Once consent has been given, it cannot be retracted unless doing so would be in the best interest of the child (s. 74(3)).