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Does Having a Criminal Conviction Block A Potential Parent from Adopting?

Written by Russell Alexander / (905) 655-6335

Does Having a Criminal Conviction Block A Potential Parent from Adopting? 

The New Brunswick Court of Appeal had an interesting issue to resolve:  Does a fraud conviction by one member of a couple preclude them from adopting a child?

In this case the child had been in the couple’s care since birth, under a foster care agreement with the relevant government Ministry.  When the parents applied to formally adopt the child, it was revealed that the mother had been convicted of fraud under $5,000, in connection with her previous employment. She had received a 10-month intermittent sentence.

Under the provincial legislation governing adoptions in the province, the Minister was obliged to assess the couple’s suitability as “prospective adoptive parents”.  However, a criminal conviction for fraud was one of the expressly-listed indicators of unsuitability, so the Minister advised the parents that – essentially on an administrative basis – they were out-of-the-running for the adoption.

The couple applied to the court, but failed to get the Minister’s decision overturned on review. They appealed further to the Court of Appeal.   Looking at the wording of the legislation, they argued that the ban against having a criminal conviction was not mandatoryi.e. that they could still be considered “suitable” prospective adoptive parents, even despite the mother’s criminal record.  In other words, they argued that the Minister was allowed some discretion in this regard.

They also argued that the child’s wellbeing had been overlooked:  The prior judge had failed to consider the best interests of the now 18-month-old special needs child who had been in their foster care her whole life, and with whom it was conceded they had a strong and loving bond.  In fact, the putative parents argued that not only were those best interests to be considered as part of the suitability assessment – they were the paramount consideration.

Despite these arguments, the New Brunswick Court of Appeal nonetheless dismissed the couple’s appeal.

The goals of the pertinent legislation were clearly aimed at child protection, and at fostering the best interests of the child.  The Act listed the specific criteria that were to be considered when declaring prospective adoptive parents to be unsuitable; certain criminal convictions were among them.

Once the mother was convicted of fraud, she met the threshold criteria; the Minister was not at liberty to declare otherwise.  The legislation did not leave room for any discretion, nor for any exceptions. The Appeal Court added:

It is no answer to say, in this case, it would be in the child’s best interests to be adopted by someone who fails to meet the criteria. That would merely be replacing the judgment made by the Lieutenant-Governor in Council about the best interests of a child with the judgment of the court. In making a regulation without discretionary exceptions, the legislator must have been alive to the issue of hard cases like this one, and must have concluded that, on balance, the best interests of the child favoured excluding adoption by those convicted of fraud. That I might have come to a different conclusion is no ground for saying the legislator is wrong.

The Court clarified that the Minister was indeed obliged to consider the best interests of the child before placing her for adoption, but this consideration was to come later and did not override the initial threshold test for suitability, which was set out in the Act’s listed criteria.

For the full text of the decision, see:

N.C. and L.C. v. The Minister of Social Development, 2020 NBCA 27

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.