We often receive requests from clients about step-parent adoptions so we thought it would be helpful to provide a brief overview of the process and answer some frequently asked questions. Please note that the following is not legal advice. Every situation is different and may require additional documentation or steps than the ones set out below.
Can my spouse adopt my child?
In Ontario, step-parent adoptions are governed by the Child and Family Services Act. Section 146(2)(c) provides that the court may make an order for the adoption of a child by the spouse of a child’s parent. “Spouse” includes individuals who are married or living in a common law relationship and same sex couples.
The step-parent will be considered the Applicant and typically the other biological parent will be named as the Respondent. When a step-parent adopts their spouse’s child, the parental rights of the other biological parent (the non-spouse parent) are terminated. Therefore, that parent’s consent may be required or an order dispensing with the consent of the biological parent may have to be obtained.
In some cases the other biological parent may not be known or it may not be in the best interests of the child for that person to have notice of the adoption application. In that case, permission to dispense with consent of a parent will need to be obtained, by means of a court order.
What is the process for my spouse to adopt my child?
In order for a step-parent to adopt his or her spouse’s child, he/she must complete an Adoption Application. Examples of some of the documents that are required are a certified copy of the child’s statement of live birth (or an equivalent document), an affidavit of parentage from the parent of the child and an affidavit from the step-parent. Additional documents will be required and will vary depending on the circumstances.
There will be circumstances in which the Application can be submitted to the court and no court appearance is required. For example, if a biological parent is consenting to the adoption, he or she can complete the consent form and the entire application can be submitted to the court for review and signing by a judge. If a motion is required to dispense with the consent of a biological parent, an appearance before the court may be required.
Is anything required of my child?
If the child to be adopted is seven years or older, he or she will have to consent to be adopted. If the child is seven or older but under the age of eighteen, the child will have to meet with a lawyer from the Office of the Children’s Lawyer. The lawyer must be satisfied that the child’s consent reflects his or her true wishes. The lawyer will explain to the child:
The nature and effect of the adoption;
- The nature and effect of the child’s consent;
- The circumstances under which the child may withdraw consent
- The child’s rights and the rights of others with respect to the disclosure of adoption information.
As the spouse of the adoption applicant, what is my role?
The parent of the child to be adopted will also need to consent to his/her spouse adopting his/her child and joining him/her in the role of parent. The parent will need to complete an Affidavit of Parentage and will also have to provide his/her consent to the adoption. The parent will have to obtain independent legal advice regarding the nature and effect of the adoption as well.
What happens if someone consents but later changes his or her mind?
Any person who gives consent to the adoption may withdraw his or her consent in writing within 21 days after the consent is given. If the 21 day period has passed, the court may permit a late withdrawal of consent where it is in the child’s best interests to do so. Once the adoption order is made, it is final, subject only to any appeals.
The adoption of a step-child carries a lot of significance for the entire family. The modern family is made up of many different configurations and biology is not what makes a family. All you need is love, as they say.
This blog post was written by Kate Wright, a member of the Family Law, Wills and Estates and Litigation teams. She can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.
