Case information

Family law — Adoption — Eligibility for adoption — Whether it can be found that there is parental abandonment, that there has been no taking charge “in fact” or that taking charge again is unlikely where state has itself controlled, limited or shaped parent-child relationship, and how Canadian law must define and protect parental rights in youth protection context like this one — Circumstances in which institutional evidence presented by youth protection actors can, on its own, satisfy legal threshold required to find danger to security or development and justify measure resulting in permanent severing of parental relationship, without state intervention becoming self-justifying or state being absolved from real responsibility — Extent to which legal framework applicable to youth protection and adoption must require actual and current consideration of evolution of expert evidence before child’s return is found impossible and permanent severing of parental relationship is approved — Civil Code of Québec, art. 561.

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(PUBLICATION BAN IN CASE)

In 2020, the Court of Québec, Youth Division, confirmed the reasons for a report indicating that a child’s security or development was in danger due to a serious risk of neglect, and it ordered that the child be placed with a foster family. Supervised meetings between the mother and the child were planned. In 2002, the Director of Youth Protection filed an application to have the child declared eligible for adoption.

The trial judge applied a three-step analysis to the facts of the case. He concluded that: (1) the mother had not in fact assumed the care, maintenance or education of the child; (2) the mother had presented no specific, realistic and concrete plan for having the child returned to her; and (3) it was in the child’s interest to be declared adoptable. He granted the application for adoption eligibility. The Court of Appeal was divided on the outcome of the case. The majority, Lavallée and Hardie JJ.A., found that the trial judge had not erred in analyzing the facts at each of the three steps. Hogue J.A., dissenting, was of the view that the trial judge had erred in his analysis of the first criterion by finding factors relevant when they were not and by imposing too heavy a burden on the mother. On this basis, the application should have been dismissed.