For many people who struggle to have biological children, the idea of adoption can seem like one of the few paths to parenthood still available. However, when two prospective parents recently found out they were not going to be able to adopt because of the wife’s prior conviction of a criminal charge – namely fraud – the New Brunswick Court of Appeal was asked to determine whether a criminal record places a blanket prohibition on adoption.
Foster parents look to adopt, but criminal charges get in the way
The husband and wife became foster parents to the child in 2017. They had already been foster parents to seven other children at the time they brought the child home.
In late 2017 the mother was charged with criminal offenses in relation to her job. This was not known to the Minister of Social Development, whose office is charged with approving adoptions. As a result, the adoption process continued through to January 19, at which time the Minister learned the wife had pled guilty to fraud under $5,000, leading her to receive a 10-month intermittent sentence.
Upon learning of the wife’s guilty plea, the Minister advised the family that they could no longer be foster parents and that their application to adopt the child would be rejected. The rejection was tied to s.67(2) of the Family Services Act which states that one of the criteria for adoptive parents is that “neither the applicant nor a member of the applicant’s household has been convicted of an offense under the Criminal Code set out in Schedule A.”
They sought judicial review of the Minister’s decision, but the judge ruled that the FSA did not create any discretion, leaving the Minister without the authority to make a decision contrary to the act.
Should the criminal conviction bar the couple from adopting?
The primary grounds of appeal was that the judge misinterpreted the FSA by concluding the wife’s conviction excluded the couple from consideration as suitable adopting parents.
The argument boiled down to the language used in the relevant sections of the Act, particularly language which states “The Minister shall not issue an approval of a child placement resource unless each care provider in the child placement resource meets the following criteria and standards:” (Emphasis added by the court).
The court found that the language clearly indicated an intent to exclude applicants convicted of special offenses. While there is discretion available for some of the criteria, the court found there to be no room for dispute about this particular criterion. While the husband and wife argued that despite all of this, it is within the best interests of the child for them to be able to adopt her, there is simply no room within the law for any discretion to be applied, even in that light.
For these reasons, the appeal was dismissed.
At Howie Johnson Barristers & Solicitors, we have more than 25 years of experience dealing with all aspects of family law. We know that each person and family is different. We are dedicated to listening to our clients and crafting custom legal strategies based on each of their unique needs. To discuss your legal needs with one of our experienced Windsor family law lawyers call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.