Birth Mother Seeks to Set Adoption Order Aside for Fraud

Many families in Alberta look to alternative routes to becoming parents when traditional efforts do not work or are not possible. For example, many members of the LGBTQIA2S+ community seek parenthood through means such as surrogacy, the donation of reproductive materials, or adoption. In addition, Alberta’s foster parent system can also lead to permanent adoption orders after the province intervenes by removing a child from their birth home due to concerns over safety or neglect. Adoption can be an excellent way to provide a child in need of a permanent loving home when their birth parents are unwilling or unable to provide a safe and nurturing environment for them. 

However, not all adoption stories involve the enthusiastic participation of the birth parent(s) of a child. Particularly in cases involving Alberta’s First Nation and Indigenous communities, child intervention, guardianship, and adoption applications can be fraught with emotion. In any case where a child is removed from a home by the state, the child’s birth parent(s) may oppose the child being placed with a foster family. This is especially important where the arrangement proceeds to an application for adoption, making the child’s removal from their birth home permanent. 

Child Apprehended and Placed for Adoption by Province

In a recent case, JSG v. Alberta (Director of Child, Youth and Family Enhancement), a birth mother lost an appeal in which she sought to have an order for adoption declared void due to civil fraud. 

JSG gave birth to a child in December 2013. Later that same month, the child was apprehended from JSG’s care and placed in foster care. In February 2014, at the initial custody hearing, the child was permitted to return to JSG’s care. However, in September of that year, the province intervened, once again apprehending the child. The child was under the Director’s care until an order for adoption was granted in January of 2018. 

While in the Director’s care, JSG had sought access to the child. However, it was only granted on a supervised basis due to concerns over JSG’s behaviour and mental state. The Court had determined that JSG had a personality disorder and was unable to admit to wrongdoing or take responsibility for her actions.

Further, there were concerns that allowing JSG to have access to her child unsupervised would expose the child to an overwhelming risk of neglect and emotional injury. Due to JSG’s inability to comply with the conditions placed on her access to the child, access was cut off in April of 2015. This is the last time JSG had direct contact with the child. 

There were many hearings in which JSG challenged the various orders affecting her child until the adoption order was granted in 2018 without notice to JSG. Two weeks after the order was granted, JSG filed a challenge to the order, which was dismissed since the order had already been granted. JSG then filed an unsuccessful claim that the order should be set aside because it had been procured by fraudulent means. JSG appealed that decision, bringing us to the decision released just last month. 

Examining Fraud in the Granting of an Adoption Order

Pursuant to s. 73.1(1) of the Child, Youth and Family Enhancement Act, an order for adoption may not be set aside more than one year after the order was granted, except in cases in which the order was obtained through fraud. 

In examining JSG’s claim, the court considered the test for civil fraud, which contains four elements. The Chambers judge applied the elements to cases of adoption specifically as follows:

1. a false representation is made by words or conduct (including the omission of required information);
2. the maker knows that the representation is false or is reckless as to whether or not it is false;
3. the maker knows that the representation will be relied on in the adoption process, including being relied on by the judge granting the adoption; and
4. the reliance on the false representation results in the contravention of the statutory and other requirements necessary for the adoption order in issue to be granted.

Upon an examination of the evidence, the Court found that there did not appear to be any evidence that material evidence was withheld from the adoption judge or that any false or misleading evidence had been provided in the adoption hearing. 

With respect to the lack of notice to JSG about the adoption hearing, the Court found that even if JSG had been informed about the hearing, she would have had limited standing in the matter. She would have had no access to the adoption file, nor would she have been in a position to prevent the adoption from proceeding. Ultimately, the Court of Appeal upheld the Chambers Judge’s findings that there had been no evidence of fraud in the granting of the adoption order, and JSG’s appeal was dismissed.

Experienced Calgary Lawyers Providing Legal Representation and Contract Drafting for Fertility and Reproductive Matters

Bringing a child is a joyous experience that should be free of stressful legal disputes. At Mincher Koeman, our family law lawyers protect the rights of clients expanding their families through various assisted reproductive processes. We have extensive experience in the drafting and review of custom agreements designed to clarify the expectations of each party involved from the start and avoid future conflict.

Further, we have been working with families involved in Alberta’s child intervention program for many years, helping families work to maintain connections whenever possible. We are particularly involved with helping Alberta’s First Nation and Indigenous communities in this respect. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.