LaCarte v. Macdonald: Adoption When a Parent is Not Apparent (or a parent)

This is an adoption case with very peculiar facts. Basically, the biological mother told the biological father that the child died shortly after birth. She then told him that the child was alive, but not his biological child. A paternity test determined that he was indeed the biological father. By the time this was determined, the biological mother had put the child up for adoption and, at the time of this Motion, the child was in the adoptive parents’ care.

According to legislation, adoption requires the consent of every parent of the child. So, after a determination that he was indeed the biological father, the adoption should have been invalidated because he did not consent to it. Unfortunately, the biological father did not meet any of the statutory definitions of ‘parent’ at the time of the adoption.

However, all was not lost for the biological father. Justice Mackinnon found that she could not allow the biological mother to benefit from her deception, so she used her inherent jurisdiction as a Superior Court Judge (or alternatively, parens patriae, a legal doctrine that allows courts to assume jurisdiction under circumstances that include finding a gap in legislation) to find the adoption placement invalid against the biological father. This means that Justice Mackinnon found that the biological father did not transfer his parental rights to the adoptive parents.

But, this was not the end of the story, or the decision, because the biological father’s interests were not the only ones relevant to this Motion. There were also the interests of the adoptive parents, who are also innocent parties to this case. The adoptive parents should not have their child taken away from them because of the biological mother’s lies. And, of course, there were the interests of the child to consider. It is not in the child’s best interest to be taken away from the only family she has ever known, nor is it in her best interest to be denied the opportunity to live with her biological father because of her biological mother’s lies.

To balance these competing interests, Justice Mackinnon held that the biological father’s custody application and the adoptive parents’ Motion to dispense with the biological father’s consent to the adoption be heard in one trial. This will ensure that the father’s claim for custody could not be made moot by a finding that his consent was not required for the adoption to proceed.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. Despite the appalling actions of the biological mother, the problematic legislation to address such a unique issue and the unfairness to what are likely extremely willing and capable adoptive parents, the judge saw past the attention-grabbing facts. Despite all the possible harm to the adults involved, the heart of the issue is the child’s best interests.

    By utilizing the Court’s parens patriae jurisdiction, the motion judge is ensuring that all interested parties air the concerns and present their evidence at the same time in one trial. The trial judge will be best suited to then decide what is in the child’s best interests. This will best serve the person who this case is really about: the child.

    While it is unlikely that these facts will occur in another case any time soon, this case is nevertheless an example of a well thought-out solution to a unique situation and is an example of good use of the Court’s inherent jurisdiction.

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