Adoption Law in Canada

Adoption is a matter of provincial jurisdiction. Therefore, there are as many adoption statutes as there are provinces!

Adoption is the formal and permanent taking-in of a child as one’s own.

In the words of Ontario Provincial Court judge Nevin in K. v. B. (1995):

"The concept of adoption is a unique creature of statute that has been referred to as the most significant procedure which can arise within the legal system. It involves the total extinguishment of the birth parents rights and the establishment, legally, retroactively and permanently, of the parent-child relationship between a child and a person who is not the biological parent of the child. To use the very wording of s. 158(2) of the (Ontario) Child and Family Services Act, once an adoption order is made the child becomes the child of the adoptive parent" and "the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made."

Thus, in the eyes of the law, the incorporation is absolute in that the adopted child is taken on an equal footing with natural children, right down to the use of the adopting parent’s surname. For example, natural children have no child support priority over their adopted siblings; the same in regards to intestates.

Children feet Unfortunately, this may work both ways.

For example, an adopted child may lose all intestate rights with respect to the estate of their birth parents. A notable exception to this is the concession made to native children who often retain their native status notwithstanding adoption by non-native parents.

Because of the profound legal consequences adoption causes for the child and his or her new parents, some provinces have wisely set special ages which must be attained by the applicant adoptive parent before an application for adoption can be made. For example, in Québec and Newfoundland, as of 2007, you must be at least 25.

According to the Adoption Council of Canada, Canadians adopt 2,000 children from other countries every year.

One American study conducted in 2000 showed that about 2.5% of Americans under the age of 18 are adopted, statistics which are likely a reflection of the situation in Canada.

In an October 2007, the BC provincial government reported that "over 1,000 children" were on their waiting list for adoption.

The Adoption Council of Canada estimates that 20,000 children are presently in foster care in Canada, all potential adoptees.

The costs of an adoption application alone are estimated to be between $6,000-$10,000.

As put in politically-correct language by the Ontario government's adoption agency:

"Sometimes children can't live with their own families. There may be a breakdown within the family, such as a parent's addiction, illness or death. Others aren't ready to take on the job of raising a child."

The law distinguishes between "family adoption", where the child is adopted by a relative or stepparent, and "non-family adoption", where the child is adopted by someone else.

Adoption law in Canada presents a labyrinth and hybrid picture in that about half the adoptions occur through the administrative efforts of provincial adoption agencies, the other half being either private or international. When the government does get involved in adoption, many of the adoptees or children under its care pursuant to child protection legislation.

For family adoption, the process can be time-consuming and form-heavy but relatively quite straightforward and require less intervention and supervision on the part of a provincial government social worker.

The adoption process can be so overbearing that some provinces, such as Ontario and British Columbia, encourage the participation of licensed adoption agencies such as the fee-based but non-profit "Choices" agency based in Victoria, British Colombia, acting as an in-between between birth parents seeking to place a child for adoption, and persons seeking to adopt an eligible child. Agencies such as this provided an invaluable service to both sides of the "wonder of adoption". But the process continues to be a veritable legal minefield of consents, documents, deadlines, withdrawals, notices, government and court forms, fees, hearings, meetings, phone calls to the point where some lawyers do nothing but adoption law, all at cost to prospective parents.

In the result, there are two different legal paths to adoption for the child.

On one path, custody and guardianship of the child goes from a birth parent to the stepping stone of government wardship, and then to the adopting parents.

On the other path, custody and guardianship goes from the birth parent under the supervision of an adoption agency, but otherwise directly to the adopting parents.

A feature of Canadian adoption law, the good sense of which is readily apparent: a parent is not allowed to sell to the highest bidder or "gift" their custody or guardianship rights of a child, to another person. Indeed, this may well be a criminal offense. Adoptions must follow a detailed and at times fatiguing process.

Adoption is an art, not a science. Even in the event of a newborn adoptee, a successful adoption will require a careful coordination of potential siblings, cultural, religious or spiritual values, and then a review of equally sensitive but relevant information such as a home study and medical, employment and financial histories of potential adoptive parents, criminal act or checks an even discrete interviews with neighbours or collaterals - much like a security check. There seems to be no point in placing an often-troubled adoptee in a home which is barely able to make ends meet.

Adoption law often require a degree of finesse as in some cases, the consent of a birth parent might be required, and it may also be that the laws on the particular jurisdiction require that the consent be exhibited in a specific form.

Most, but not all adoption applications are unopposed; there is no one opposing the adoption. In some jurisdictions such as in BC, an applicant may be able to obtain an adoption order without a court hearing, provided all of the paperwork is properly completed.

In making a decision relevant to adoption, the relevant judicial tests are not necessarily the same as with other custody and guardianship decisions, albeit very similar. For example, ¶3 of the Adoption Act of British Columbia says that the following factors are considered in an adoption matter:

  • The child's safety;
  • The child's physical and emotional needs and level of development;
  • The importance of continuity in the child's care;
  • The importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;
  • The quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;
  • The child's cultural, racial, linguistic and religious heritage;
  • The child's views;
  • The effect on the child if there is delay in making a decision; and
  • If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.

The momentum of Canadian law is such that same-sex couples are acquiring the right to adopt children notwithstanding their sexual orientation.

An adoption order will usually override any existing custody or access order in respect of the child.

Given that adoption is often useful in addressing the essential needs of children who have been orphaned by war, Canadian jurisdictions are well served in that regards by the 1993 Hague convention on inter-country adoption, which will be the subject of another article.

In the aftermath of an adoption, the most common issues arising are related to access to information by the adoptee about his or her birth parents, or vice versa. Each jurisdiction has a different attitude and process in respect to this issue which must be gleaned from the relevant provincial statutes. By way of example, British Columbia maintains a Birth Father Registry which allows the natural father to receive notice of a proposed placement of his child.

References and further reading

  • Newfoundland Adoption Act, SNL 1999 Chapter A-2.1
  • Adoption Act of Québec, RSQ Chapter A-7
  • Adoption Act of Manitoba, CCSM Chapter A-2

Published: Wednesday, October 17, 2007
Last updated: Monday, October 31, 2011
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