There are four distinctive routes by which children may be adopted in Ontario:
- by a step-parent or other relative;
- from a Children’s Aid Society;
- privately from a licensed individual or private adoption agency; or
- from a licensed international adoption agency.
The most common request respecting adoption matters, dealt with by our firm, are requests for adoption by step-parents. This court-ordered procedure is set out more closely below. If you are interested in any of the other means of adoption, relevant information may be found at the following government of Ontario website: https://www.ontario.ca/page/adoption.
As suggested by its name, a step-parent adoption involves an application made individually by the spouse of the child’s parent or jointly with the child’s parent under the Child and Family Services Act to either the Ontario Court of Justice or the Family Court of the Superior Court of Justice for an order for adoption.1 The definition of spouse employed in the legislation is based on the Human Rights Code and includes married partners and partners living in a conjugal relationship whether of the same-sex or opposite sex. Both the applicant and the adoptee must be residents of Ontario for the court to make an order. According to the legislation, a child is defined as a person under 18 years of age; however orders may be made in respect of individuals 18 years and older.
The overarching concern the court faces in making the adoption order is that the best interests of the child be met. Thus, a court will take into consideration aspects such as the child’s physical, mental and emotional needs and level of development, the child’s cultural and religious background and, if ascertainable, the child’s wishes. Particular attention is afforded the cultural identity of children who are Indian or native persons.
A critical element in the adoption process is the presence of consent to the adoption by the persons affected. Thus, an adoption order will not be made without the written consent of every parent, the child, if seven years or older, and the spouse of the person applying.2 A parent includes the child’s mother, the child’s father3, a lawful custodian of the child and an individual who is required to provide for the child or who has custody of the child or a right of access to the child under a court order or written agreement. A parent’s consent cannot be given within the first week of the child’s birth. The legislation allows a person who has previously given consent to withdraw it within 21 days, a period that may be extended if the court finds it to be in the child’s best interests. Although the consent of every parent is generally sought prior to an adoption order being granted, the court will dispense with consent where it is in the best interest of the child to do so and the person, whose consent has been sought, has received notice of the adoption and the application to dispense with consent.
Prior to issuing an order, the court will hold a hearing. These hearings are held in private in the county or district where the applicant or child resides. No notice of the hearing need be given to a person who has given consent and not retracted it nor to a person whose consent has been dispensed with.
An adoption order, once issued, is final and the adopted child becomes the child of the applicant and the applicant becomes the parent of the adopted child. Indeed the statute describes the new relationship as “as if the adopted child had been born to the adoptive parent.” The significance of this new status is marked – a court is prohibited thereafter from making an order for access to the adopted child for a birth parent or member of the birth parent’s family.
1Child and Family Services Act, R.S.O. 1990, c. C.11 [hereinafter CFSA], as am. and more specifically Part VII – Adoption
2If the court is satisfied that obtaining the consent of the person to be adopted would cause the person emotional harm or the person is unable to consent due to developmental disability, the court will dispense with the child’s consent. See CFSA, ss.137 (6). The statute makes provision for a child to receive counseling and independent legal advice prior to giving its consent, See s. 137(7).
3The definition of a child’s father is governed by ss.8(1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am., which sets up a rebuttable presumption in favour of recognizing males in particular circumstances as the father of a child.