Adoption is a wonderful way to create or add to a loving family. There are a number of different types of adoptions. Each case comes with its own particular facts and adoptive parents should consult a lawyer experienced in these issues.
Agency placements involve children removed from their parents and placed with foster parents or voluntarily given up by parents to the Agency. The Agency then seeks out adoptive parents, sometimes with the assistance of the biological parents.
In a private placement the child is adopted by members of his or her family. The most common form of this is stepparent adoptions, but it can be an aunt or uncle, grandparent, etc. There are rules if the child to be adopted presently lives in another province.
International adoptions are generally done in the country of origin of the child. However, there are both federal and provincial laws that have to be complied with before bringing the child back to Canada and obtaining Canadian citizenship. The provincial Department of Community Services will require a home study and the federal Immigration Department has its own process to be complied with before the child becomes a Canadian citizen.
When children are under age 16 the Minister of Community Services may conduct home studies and make a recommendation. A home study is always done for agency adoptions and private, non-stepparent adoptions. It is not done for uncontested stepparent adoptions.
The following people must consent to an adoption:
- The child being adopted, if he or she is over 12;
- The person being adopted’s spouse;
- The parent(s), if the child is under 19.
A parent may be any of the following:
- Father, where the parents were married at the time of birth or later married;
- An individual who has custody;
- An individual who acted as parent for 12 months before proceedings commenced;
- A person who is required to provide support or has a right of access to the child under a court order and has provided support or exercised access rights in the 2 years before proceedings commenced; or
- An individual who has acknowledged paternity and has an application before the court regarding custody, access or support.
This definition does not include unmarried biological fathers who have never provided support or acted as the child’s parent.
For a child in care, the agency consents in the place of a parent.
The Court may dispense with the consent of a parent when he/she is deceased, missing, unable to consent due to disability or has had no contact or provided no support to the child for the two years before the court proceeding, but unless the parent is deceased or missing, they must be given notice.
Stepparent adoptions may go ahead without the consent of a parent. The court will be very hesitant in this type of situation and will only grant the adoption if there is clear evidence that a change in the status of the child is absolutely necessary. The court will ask whether the child would lose or gain from being permanently cut off from the non-consenting parent.
Once an adoption is granted, it is as if the child was the biological child of the adoptive parent(s) since birth.
Child support arrears accrued prior to an adoption will be eliminated if the adoption took place after 1990.
After one year, an adoption order cannot be subject to a variation.
Open adoptions permit contact between the child and birth parents and allow the birth parents to request and receive information on the child.
An “Openness Agreement” is signed by all the parties that sets out:
- the contact between birth parents and child;
- what or how information regarding the child is to be shared;
- a process for resolving disputes under the agreement.
The child’s views must be taken into consideration if the child is 12 years of age or older; and even if they are younger than 12, their views must be taken into consideration where appropriate.
An openness agreement does not affect the legal status of an adoption.
The Passive Adoption Register provides disclosure of non-identifying information that relates to an adoption and facilitates a reunion with birth parents, siblings and extended family if their name appears on the register.
Same-Sex and Common Law Couples
Same-sex and common law couples have the right to adopt. It is now possible to have both parents in a same sex relationship registered on the birth certificate when one party is the biological parent, and they have conceived through a surrogate or sperm donor. This removes the need to go through the adoption process.
This information has been provided for general reference only. For advice on an actual matter, you should consult a lawyer. Connect with a member of our team today to schedule an appointment. To contact a member of our Family Law team call us at 902-469-9500 or 1-866-339-3400.