Director of Child Welfare (Manitoba) et al. v. Y., [1981] 1 SCR 625

Supreme Court of Canada

Director of Child Welfare (Manitoba) et al. v. Y., [1981] 1 S.C.R. 625

Date: 1981-05-28

The Director of Child Welfare, Province of Manitoba and the Adopting Parents (Respondents) Appellants;

and

Y. (Applicant) Respondent.

1981: May 12; 1981: May 28.

Present: Laskin C.J. and Martland, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Infants—Adoption—Voluntary surrender—Subsequent withdrawal of consent—Statutory provision for withdrawal of voluntary surrender prior to child’s placement—Consent withdrawn the day after child surrendered but not prior to the child’s placement—Whether or not respondent entitled to the return of her child—The Child Welfare Act, 1974 (Man.), c. C80, s. 15(1), (2), (4), (6).

Respondent, a nineteen year old unmarried mother who had already surrendered one new-born child for adoption, voluntarily surrendered her second child on the first day that it was legally possible to do so. She had expressed the wish not to keep the child and had discussed the matter with the Director of Child Welfare. When respondent attended to sign the agreement she was informed that the child would probably be placed for adoption within the next two days. Respondent decided to revoke the surrender the next day, but was unable to communicate this decision to the Director until the following day. The agreement provided for revocation by written notice to the Director provided that it occurred prior to the day the child was placed for adoption, or within one year, whichever occurred earlier. The child was placed for adoption the day after the surrender had been signed.

This appeal was from the decision of the Manitoba Court of Appeal reversing the dismissal of the respondent’s application for the issuance of a writ of habeas corpus ad subjiciendum.

Held: The appeal should be allowed.

Respondent was not entitled to the return of her child. Subsection 15(6) had to be considered in the context of the section as a whole and in light of the intention of the Act—“to provide for the placement of an infant child in as expeditious and equitable manner as possible”. The subsection did not grant an absolute right to a woman who agreed to surrender all her rights with respect to

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her child to have an opportunity to reconsider her decision and to withdraw the surrender. The appellant Director, by placing the child for adoption, was carrying out his duty. His doing so did not deprive the respondent of any right, for, pursuant to subs. 15(6), the right to withdraw the surrender was conditional on there having been no prior placement for adoption.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], reversing a decision of Dewar C.J. to dismiss respondent’s application for an order for the issuance of a writ of habeas corpus ad subjiciendum. Appeal allowed.

Jeffrey James Oliphant, Q.C., and Robyn Diamond, for the respondent, appellant, the Director of Child Welfare.

Perry W. Schulman, Q.C., and B.A. Crane, Q.C., for the respondents, appellants, the Adopting Parents.

Jill Oliver and Barbara McIsaac, for the applicant, respondent.

The judgment of the Court was delivered by

MARTLAND J.—This appeal is from a judgment of the Court of Appeal for Manitoba which reversed the decision of Chief Justice Dewar who had dismissed the application of the respondent for an order that a writ of habeas corpus ad subjiciendum issue for the delivery of the body of the respondent’s child.

The relevant facts are stated in the reasons for judgment of the Court of Appeal, delivered by Monnin J.A., as follows:

At the times germane to this matter the applicant was an unmarried mother of nineteen years of age. At the age of sixteen she gave birth to a child who was surrendered to the proper authorities for adoption.

On September 9, 1980, she gave birth to the child in question. At that time, not wanting to keep the child, she so informed a nurse at the hospital, who notified the local office of the Director of Child Welfare.

On September 10, 1980, Mr. Malcolm Strang, a social worker in the employ of the Director of Child

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Welfare, visited the mother in hospital and the voluntary surrender of the child was discussed. The mother was informed that, pursuant to s. 15(2) of The Child Welfare Act 1970 C.C.S.M. Cap. C80, no surrender agreement can be entered into until the expiration of at least seven clear days after the birth of the child. Thus no agreement could be signed prior to September 17, 1980.

On September 16, 1980, the applicant attended at Mr. Strang’s office ready and willing to sign the surrender agreement, but was reminded that she could not do so until the next day. She re-attended on September 17th, and signed the document, whereupon she was informed that the child would probably be placed for adoption on the 18th or 19th of September, 1980.

The next day, on the 18th of September, she had a change of heart and attempted to reach Mr. Strang by telephone in order to withdraw her surrender. She was unable to reach him. On Friday, the 19th of September she attended at Mr. Strang’s office and indicated her desire to withdraw the surrender, but was told it was too late as the child had been placed for adoption the day before, namely September 18th. In fact the approval for placement for adoption pursuant to s. 99(3) of the Act was dated September 18, 1980.

The surrender agreement signed by the respondent contained the following provisions:

(1) The mother hereby surrenders guardianship of the child to the director.

(2) The director hereby accepts the guardianship of the child as a permanent ward.

(3) The mother acknowledges:

(a) that all her rights and obligations with respect to the child are hereby terminated;

(b) that if she subsequently marries, this agreement shall be deemed to have been executed by both herself and her spouse and both are equally bound hereby;

(c) that she fully understands the nature and effect of this voluntary surrender including in particular, but not limited to, the fact that the director shall now have the right to place the child for adoption;

(d) that she has been informed that she may by written notice to the director, withdraw her voluntary surrender of guardianship at any time prior to the day that the child is placed in a home by the director or a society for the purpose of adoption, or within one year from the date of this agreement, whichever is the earlier, but not thereafter, and they shall not be given notice of an application for an Order of Adoption.

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Chief Justice Dewar made the following finding:

I am satisfied on the material before me that the applicant fully understood the effect of the agreement when she signed it and intended the agreement to effectively dispose of her parental rights and acted of her own free will at all material times.

The relevant provisions of The Child Welfare Act, 1974 (Man.), c. C80, are as follows:

15(1) Notwithstanding any other section of this Act an unmarried mother may by agreement on a prescribed form, surrender guardianship of her child to the director or a society, and an agreement entered into by an unmarried mother under this section is a good and valid agreement, notwithstanding that the unmarried mother is under the age of majority.

15(2) No agreement shall be entered into under subsection (1) until the expiration of at least 7 clear days after the date of birth of the child.

…

15(4) Upon the surrender of the guardianship of a child to the director or a society under subsection (1) the child becomes a permanent ward of the director or the society and the rights and obligations of the parents with respect to that child are thereby terminated.

…

15(6) A person who has voluntarily surrendered guardianship of a child under this section may, by written notice to the director or the society, as the case may be, to whom guardianship was surrendered, withdraw his voluntary surrender of guardianship at any time prior to the day that the child is placed in a home by the director or society for the purpose of adoption, or within one year from the date of the agreement entered into pursuant to subsection (1) or (5), whichever is the earlier but not thereafter, and notwithstanding any other provision of this Act, that person shall not be given notice of an application for an order of adoption of the child.

No written notice of withdrawal of the voluntary surrender was ever given to the appellant Director pursuant to subs. 15(6).

The conclusion reached by Chief Justice Dewar is stated in the following portion of his reasons:

It is common ground that the applicant sought to withdraw the voluntary surrender on September 19th when she communicated with Mr. Strang. I overlook the fact that the communication was not a written withdrawal as required by Section 15(6). It was made however the day

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following placement of the child and not prior to the placement and cannot be relied upon as terminating the effect Section 15(4) of the statute accords to a voluntary surrender of guardianship agreement made pursuant to Section 15(1). In summary, I am of the opinion that there was strict compliance with the provisions of the statute. The applicant effectively surrendered her parental rights on September 17th and failed to reclaim them in time to avoid the statutory effect accorded the surrender. In the absence of demonstrated abuse by the respondent director of the rights and responsibilities confirmed upon him by the statute following a voluntary surrender of guardianship to him I hold the view that the Court should not intervene and defeat a result clearly and expressly intended by the Legislature.

The reason given by Monnin J. A. in the Court of Appeal for allowing the respondent’s appeal to that Court is stated in the following passage of his reasons:

The Director of Child Welfare has no power to deprive a parent of her rights under the Statute. In effect, what the Director did by his speedy action was to deprive this young mother of all her rights under s. 15(6) of the Act. By the Director’s actions, this woman had to surrender and withdraw her surrender on the same day. And the Director made it so that the woman could not call s. 15(6) to her aid. The Legislature, having made provision for the withdrawal of a voluntary surrender, expected this right to be of some effect, and capable of being made use of. The Director, by his action, has made a sham of s. 15(6). That is where the error lies, and that is where the error must be corrected.

With respect, it is my opinion that it is erroneous to interpret subs. 15(6) of the Act as granting an absolute right to a woman who has agreed to surrender all her rights with respect to her child to have an opportunity to reconsider her decision and to withdraw the surrender. Subsection 15(6) has to be considered in the context of the section as a whole and in the light of the intention of the Act which, as the respondent concedes, was “to provide for placement of an infant child in as expeditious and equitable manner as possible”.

Subsection (1) of the section enables an unmarried mother to surrender guardianship of her child.

Subsection (2) is designed to prevent a hasty decision on the part of the mother by preventing her from entering a surrender agreement until the

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expiration of seven days after the birth of the child.

Subsection (4) provides that, upon the surrender of guardianship, her rights and obligations with respect to the child are terminated.

Subsection (6) provides that, prior to the day the child is placed in a home for the purpose of adoption, the mother may, by written notice, withdraw her voluntary surrender of the child. No right to withdraw the surrender exists if the child has already been placed in a home for the purpose of adoption.

The appellant Director, by placing the child for adoption, was carrying out his duty. By so doing he did not deprive the respondent of any right. Under subs. (6) she had no right to withdraw the surrender if the child had already been placed. The Legislature made the right to withdraw surrender conditional upon there having been no prior placement for adoption.

In my opinion, the meaning of subs. (6) is clear. The attempt made by the respondent to withdraw the surrender did not occur until after the child had been placed for adoption. She could not then comply with the provisions of the subsection and so she is not entitled to the return of the child.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Chief Justice Dewar. In accordance with the provisions contained in the order granting leave to appeal, the appellant will pay the respondent her costs in this Court. There will be no order as to costs in the Court of Appeal.

Appeal allowed.

Solicitors for the respondent, appellant the Director of Child Welfare, Province of Manitoba: Johnston, Johnston & Oliphant, Dauphin, and Gordon E. Pilkey, Winnipeg.

Solicitors for the respondents, appellants the Adopting Parents: Schulman & Schulman, Winnipeg.

Solicitors for the applicant, respondent: Oliver and Derksen, Winnipeg.