BH (RE) , 2023 ABKB 392


11.27: Validating service
11.28: Substitutional service
11.29: Dispensing with service

Case Summary

This was an Application to dispense with the service required under the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 (the “Act”) in the context of a proposed adoption by the Applicants.

The Act requires personal service of the adoption application materials with a notice of objection form on the biological parents of the child. The Applicants had served the child’s biological mother, who consented to the adoption, but the child’s biological father could not be located except by social media. The evidence before the Court did not clearly support that the social media account belonged to the biological father, and the account holder did not reply to the Applicants’ attempted correspondence.

Here, Justice Eamon considered whether the Court had jurisdiction to dispense with the service required under the Act.

The Court noted that the Act permits the Court to shorten the time for service, direct the manner of service, or approve the manner of service that was made. However, the Eamon J. cited conflicting case law on whether service could be dispensed with entirely.

Justice Eamon observed that the Act and its Regulation provide that, with respect to any matter not considered under the Act or associated Regulations, the Court may follow the Rules and make directions as to procedure. Justice Eamon considered that the Rules provide for validating service (Rule 11.27), substitutional service where person service is impractical (Rule 11.28), and dispensing with service where service is impractical or impossible (Rule 11.29).

Despite jurisprudence to the contrary, Justice Eamon held that the Act and its Regulation permitted the Court to apply Rule 11.29 to dispense with service. Justice Eamon considered that to find otherwise would “severely hamper some adoptions to the detriment of the child’s best interests.”

Justice Eamon therefore ordered that a further attempt be made to contact the biological father through the social media account, but that following further evidence of that attempt, the Court could either dispense with service or validate service, as appropriate

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