Droit+de+la+famille+-+1914


 * __Droit de la famille—1914, [1996] R.J.Q. 219 (C.A.)__**

A young woman struggling with schizophrenia, drug abuse and prostitution gave birth to two children. The children were put into a host family by child services, and the family eventually decided they want to adopt the children.
 * Facts**

CCQ Article 559 (formerly 611) is used to determine whether a child can be “judicially declared eligible for adoption”, which is the first step in an adoption process when the parents haven't consented to the adoption. The question at bar is whether it is essential to take into account the child’s best interests at this stage.
 * Issue**

Yes, the child’s best interests must be taken into account when determining if the child can be judicially declared eligible for adoption, as required by CCQ 33. In this case, despite the mother meeting failing the requirements of both CCQ 559 and 561 (see below), the court refuses to declare the child eligible for adoption.
 * Holding**

In order for a child to be eligible for adoption, either his biological parents have to grant their permission, or the child must be declared eligible by the courts (CCQ 544). One situation in which the courts will declare this eligibility is when the parents have not been taking care of the child:
 * Reasoning**

559. The following may be judicially declared eligible for adoption:

(2) a child whose care, maintenance or education has not in fact been taken in hand by his mother, father or tutor for at least six months;

Furthermore, it has to be unlikely that the biological parent/tutor will resume taking care of the child (561). The burden of proof is on the parents to demonstrate that they will resume care of the child.

Even though the child’s interests are not explicitly mentioned in these articles, the majority (Fish and Chamberland) point to CCQ 33 and 543:

33. Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.

Whether or not to designate a child eligible for adoption is a decision that concerns that child, and thus his or her interests must be taken into account.

In this case there are questions as to whether adoption really is in the best interest of the child: based on the opinions of a psychologist, the children are experiencing feelings of abandonment. They will need to see their mother in order to deal with these. The children’s aunt, also a psychologist, also claims that their ethnic background (Cameroonian) should be taken into account.

Thus, even though the mother has not taken care of the children for more than 6 months, and admits that she will not do so in the future (meaning that article 559(2) applies), the courts refuse to declare them eligible for adoption. The majority says that judges should always have discretion with respect to a child's best interests.

The minority (Beauregard) says that the court is denying these children the right to be adopted. He thinks that articles 559 and 561 should only be invoked in situations that amount to total abandonment of the child. In this kind of situation, he can’t imagine it ever being //not// in the child’s interest to be adopted. He puts much more faith in the legislature's ability to craft laws that, if applied somewhat mechanically by the judiciary, will result in the child's best interest. He doesn't believe in judicial discretion in this situation.

Following articles 33 and 543, the interests of the child must be taken into account when deciding if he/she is eligible for adoption. Judges should avoid mechanically applying article 559.
 * Ratio**