The Applicants applied to adopt a child. The Application included the biological mother’s consent and an Affidavit of Reference, but it did not include the biological father’s consent. The biological father had also not been personally served with Notice of the hearing as contemplated by section 64(1)(g) of the Child, Youth and Family Enhancement Act, RSA 2000 c C-12 (the “Act”). In the biological mother’s Affidavit, she deposed that she had only met the child’s biological father several times, that she did not know the biological father’s last name, that she was sexually assaulted by the biological father the last time she saw him, and that she would not feel safe to contact the biological father and advise him of the child.

Justice Malik held that Notice of a Court Application is a fundamental civil right and should only be deviated from in exceptional circumstances. However, while the Act requires that the biological father be personally served, section 64(8) of the Act, which addresses alternative means of service, does not preclude the application of Rule 11.29 in exceptional circumstances. Justice Malik held that if the biological mother swore and filed a further Affidavit that satisfied the Rule 11.29 requirements, he would be prepared to issue an Order dispensing with service to allow the adoption process to move forward.