Family Law presents us with a unique opportunity to use our skills to assist families in re-structuring and rebuilding their lives in the midst of chaos, but no other subset of family law provides us with a front-row seat to the birth of a new family as adoptions do.
Family adoptions require the approval of the court, and at Russell Alexander Collaborative Lawyers, we are well equipped to assist you in navigating this process. It is strongly recommended that legal advice be sought at the outset.
What is Adoption?
For a variety of reasons, children may be unable to live with a parent. Some of those reasons may include a parent’s inability to holistically look after all the needs of the child. If a parent is in this situation, that parent may want to consider the adoption process. Adoption is the formal legal process by which a person or persons can legally take responsibility for the care and upbringing of a child.
Who Can Adopt a Child?
To adopt a child in Ontario, you must live in Ontario, and be at least 18 years old. There is no legislative requirement that the Applicant (person applying to adopt the child) be married, however, if you are married, then your spouse also must consent to the adoption in writing. Two Applicants can only adopt a child if they are married or living in a common-law relationship.
Adopting Children Under the Age of Majority
Children under the age of majority can be adopted by married or unmarried adults whether they be step-parents or by any other person who can prove to the court that they will honour the best interest of the child.
Adopting Children Over the Age of Majority
Children over the age of majority can only be adopted by the person or couple who cared for and looked after the individual when he or she was a minor.
In Ontario, there are four ways by which children may be adopted:
- By an immediate family member or by a step-parent together with one parent;
- Through Children’s Aid Societies;
- Through a licensed individual or private adoption agency; or
- Through a recognized licensed international adoption agency with offices in the province.
In Ontario, a relative is able to adopt a child without having to obtain a home study or being approved by the Ministry of Children, Community, and Social Services as an appropriate parent. We will be pleased to assist you if you are considering adopting a child who is related to you and looking for assistance with the Court process.
A step-parent (the spouse of the child’s parent) can make an application individually or jointly with the child’s parent under the Child and Family Services Act. The definition of “spouse” includes married partners and partners living in a conjugal relationship (same-sex or opposite sex). Both the Applicant and Adoptee must be residents of Ontario for the court to make the Order. According to the legislation, a child is defined as a person under the age of 18; however, orders may be made in respect of individuals who are older than 18 years.
In deciding whether or not to make the adoption order, the court will consider a variety of factors including but not limited to:
- The emotional, physical and mental needs of the child and the appropriate care or treatment to meet those needs;
- The child’s physical, mental and emotional level of development;
- The child’s relationship with blood relatives;
- The wishes of the child (if they can be ascertained); and
- The child’s religious faith and cultural background including the child’s cultural identity for Indian or native children.
The Element of Consent
Consent is an important factor in any adoption process. This means that a court will not grant an adoption unless every parent, the child (if older than seven), and the spouse of the person applying consents to the adoption. In the case of a child older than seven, we will be pleased to arrange for that child’s own legal representation as a part of the process.
It is very important to note that consent cannot be given within the first week (7 days) of the child’s birth. Of importance is also the fact that the legislation allows a person who has previously given consent, to withdraw it within 21 days and the court may also extend this timeframe if the court feels that it would be in the best interest of the child to do so. If the parents withdraw consent, the child must be returned to the parents as soon as the consent is withdrawn.
The court does have the authority to dispense with a parent’s consent to the adoption where it is in the child’s best interest to do so provided that the person whose consent is sought, has been provided with notice of the adoption application and the application to dispense with consent. However, there may also be situations where a court can decide that the written consent of the natural parents to the adoption is not needed. Some examples include when the identity of the natural father is unknown, if he has disappeared, or if the child has been neglected or abused.
Once the procedural requirements have been met, the court will hold a private hearing with the child, family members, and the lawyer. The parent who has provided consent to the adoption or whose consent has been dispensed with, will not receive notification of the hearing date. At the hearing, the court will issue the adoption order which is a final order and the adopted child then becomes the legal child of the Applicant (person applying to be the adoptive parent) and the Applicant becomes the legal parent of the child with all the rights and responsibilities of a parent towards that child as if that child was born to the adoptive parent. The court is thereafter prohibited from making an order for access or parenting time, between the adopted child and a birth parent or a member of the birth parent’s family.
The court date is the culmination of the process and usually, a very happy day for everyone involved including the presiding Judge.