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CED, an Overview of the Law — Adoption

Have you ever wondered what the legal process is to adopt a child in Canada? Adoption is regulated by the provinces, each of which has a distinct set of laws. In this excerpt from the Children title of the Canadian Encyclopedic Digest, you will find a summary of the law concerning how a child may be adopted in the Western provinces and Ontario, as well as the law concerning International adoption.

children

by: Roselyn Zisman and Joan Dunlop

VIII: Adoption

 

 

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VIII.6: Placement of Child for Adoption

See Canadian Abridgement: FAM.XIII.2.c.ii Family law | Adoption | Under statute | Practice and procedure | Notice of proceedings; FAM.XIII.2.c.iv Family law | Adoption | Under statute | Practice and procedure | Probationary period






 In Alberta, a person in whose custody a child is placed directly by a parent must apply to the court for an adoption order and must include as much information as possible regarding the birth history and parentage of the child, and the family and medical history of the biological parents.1 The current status of the applicant must be documented, including age, address, marital status, occupation and relationship to the child,2 and the court may require a home study report to be prepared to consider the suitability of the applicant as an adoptive parent and the capability and willingness of the applicant to assume the responsibility of a parent toward the child.3



Unless the pertinent statute provides otherwise, natural justice dictates that the natural mother receive notice of an adoption application if a continuing relationship exists between the mother and the child. In Alberta, this notice requirement persists even after the director has been granted permanent guardianship of the child.4



In British Columbia, the prospective adoptive parents must notify the director of adoption or an adoption agency of their intent to receive a child in their home for adoption as soon as possible before a direct placement.5 The director or adoption agency must then, among other things, obtain as much information as possible about the medical and social history of the child's biological family and preserve the information for the child6 and prepare a pre-placement assessment of the prospective adoptive parents.7 Only after the statutory requirements for assessment and exchange of information are satisfied may the prospective adoptive parents receive a child in their home by direct placement.8 Unless a prospective adoptive parent is a relative of the child,9 the prospective adoptive parents must notify in writing the director of adoption or an adoption agency within 14 days after receiving a child in their home for the purposes of adoption.10





The superintendent's action in placing a child with prospective adoptive parents does not confer upon them any right to custody, nor does it confer any proprietary right in the child. The superintendent may remove the child from the adoptive home and place it elsewhere. The court will not exercise its inherent jurisdiction to interfere with the guardian's right of custody in the absence of bad faith or capricious conduct on the part of the superintendent.11



In Manitoba, generally, a child being adopted shall reside in the province with the prospective adoptive parent before an application for adoption is made.12 A child and family services agency may place a child if the prospective adoptive parent and child are registered on the central adoption registry and the director approves the placement.13 Where guardianship of a child is surrendered,14 an agency may, subject to the approval of the director, place the child immediately following the signing of the voluntary surrender of guardianship agreement.15 With respect to private adoptions, a person who intends to place a child outside of Manitoba shall apply to the appropriate child and family services agency or an adoption agency with jurisdiction in the area where the person resides for approval of the placement by the director.16 The director shall not approve an application to place a child outside of Canada without first obtaining the approval of the Lieutenant Governor in Council.17 An agency may remove a child from a prospective adoptive parent's home at any time before an order of adoption is made18 and where an adoption placement agreement19 has been signed, the applicable agency shall supervise the placement until an order of adoption has been made.20



A person who intends to receive a child for adoption in Manitoba shall notify either the appropriate child and family services agency or an adoption agency having jurisdiction in the area where the prospective adoptive parent resides, of the proposed placement not later than 14 days before receiving the child into the home for the purpose of adoption.21 The person who intends to place the child for adoption shall notify the agency in question not later than 14 days before the placement.22





A person entitled to surrender guardianship of a child23 may place a child with a member of the child's extended family without the approval of the director unless the child is to be placed outside of Manitoba.24 An application for an order of adoption shall be made no later than 12 months after the date the child was transferred to the care and control of the prospective adoptive parent.25



A person who is married to the parent of a child or is a common-law partner of a parent of a child, and who wishes to adopt the child is not required to notify an agency as an application is made to the court.26



No child shall be placed for adoption after the director has been served with notice of an application to have a man declared to be the father of the child to be adopted nor shall a judge make an order for adoption in such circumstances unless the application is withdrawn or dismissed and all appeals have been exhausted.27





In Ontario, no person, other than an adoption agency or person who is licensed under the provisions of the Child and Family Services Act, is permitted to place a child under 18 with another person or to take or send a child under 18 resident or born in Ontario, out of Ontario for the purpose of adoption,28 except where the child is taken to or placed with a relative, or where the child is taken or sent by a parent to be adopted by the parent's spouse.29 A children's aid society is not subject to the foregoing restrictions.30 No person may receive a child under 18 for the purpose of adoption without the prior approval of a director, except where a child is placed by a children's aid society or exempted licensee.31 Where the director approves the proposed placement, he or she may direct a specified society, licensee or person to supervise the placement subject to such terms and conditions as he or she may prescribe.32



If a society intends to begin planning for the adoption of a child who is an Indian or native person, the society shall give written notice of its intention to a representative chosen by the child's band or native community.33 Where such a representative receives notice that a society intends to begin planning for the adoption of a child, the band or native community may, within 60 days of receiving the notice prepare its own plan for the care of the child and submit its plan to the society.34 A society shall not place a child with another person for adoption until at least 60 days after notice is given to the representative have elapsed or, if a band or native community has submitted a plan for the care of the child, the society has considered the plan.35



The term "placement for adoption" is not defined in the Ontario legislation. Placement for adoption seems not only to be a physical act; it also seems to be a legal process contemplated by the Child and Family Services Act.36 If there is scant jurisprudence on what constitutes a placement, there is nothing at all on what constitutes a termination of a placement.37





Where a child has been placed for adoption by a society or licensee and no adoption order has been made, no person shall: interfere with the child; or for the purpose of interfering with the child, visit or communicate with the child or with the person with whom the child has been placed.38 During the placement period, the certainty of the process and the protection of the prospective adoptive parents are critical in giving effect to the child's best interests. The adoption process begins with the parents making a choice that adoption is in the child's best interests. It must be allowed to proceed to its conclusion without interference from those who are not among the class of persons entitled to control the decision in the first place.39



In Saskatchewan, unless the application is made by the director on behalf of an applicant, the applicant for adoption must serve a copy of the application and any supporting material on the director at least 30 days prior to filing the application in court.40 The director may file with the court any information that he or she thinks may be relevant to the application.41





VIII.7: Consents Required for Adoption

See Canadian Abridgment: FAM.XIII.2.c.v Family law | Adoption | Under statute | Practice and procedure | Consent of child; FAM.XIII.2.c.vi Family law | Adoption | Under statute | Practice and procedure | Consent of parent






Where the child is a permanent ward, the requirements as to the consent needed from public authorities for adoption are prescribed by the governing statutes.1

 In addition to specifying which persons must consent to the adoption of a child, the legislation sets out circumstances in which a consent may be dispensed with or waived.2

 If the child is over the age of 12, the child must consent to the adoption, except in Ontario, where the consent of the child is required if the child is over the age of seven.3

In Ontario, when an application for adoption is made by a husband only or a wife only, the spouse must consent to the adoption.4

 In Ontario, an order for the adoption of a child shall not be made without the written consent of every parent.5 The definition of "parent" under the Family Law Rules cannot be applied to the adoption provisions in the Child and Family Services Act.6

 The relevant time to make a determination of whether a person is a "parent" within the definition of that term in the Ontario Child and Family Services Act7 is the time of the application for adoption and not the time the child is placed for adoption.8





VIII.8: International Adoption

See Canadian Abridgment: CNF.III.6.b  Conflict of Laws  |  Family Laws | Children | Adoption






The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption has the force of law in several provinces, including British Columbia,1 Saskatchewan2 and Manitoba,3 effective April 1, 1997. As required by the convention,4 each of those provinces has designated a central authority5 to act in matters of international adoption.



Persons habitually resident in a contracting state to the Hague Convention who wish to adopt a child habitually resident in another contracting state must apply to the central authority in the state of their habitual residence.6 If the central authority is satisfied that the applicants are eligible and suited to adopt, it must prepare a report on the applicants and transmit it to the central authority of the child's state of origin. The report must include information about the applicants' identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption and ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they are qualified to care.7



If the central authority of the child's state of origin is satisfied that the child is adoptable, it must prepare a report including information about the child's identity, adoptability, background, social environment, family history, medical history including that of the child's family and any special needs of the child.8 The central authority must give due consideration to the child's upbringing and ethnic, cultural and religious background; ensure that the necessary consents are obtained following counselling on the effect of consent, particularly the effect of adoption on the legal relationship between the child and his or her family of origin; and determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.9 It must transmit to the central authority of the receiving state its report on the child, proof of the necessary consents and the reasons for its determination on the placement.10



Any decision in the state of origin to entrust the child to prospective adoptive parents may only be made if the central authority of that state ensures that the prospective adoptive parents agree; the central authority of the receiving state approves the decision, if that is required; the central authorities of both states agree that the adoption may proceed; the prospective adoptive parents are eligible and suited to adopt; and the child is or will be authorized to enter and reside permanently in the receiving state.11 The central authorities of both states must take all necessary steps to obtain permission for the child to leave the state of origin and to enter and reside permanently in the receiving state.12



In Alberta, the Child, Youth and Family Enhancement Act provides for intercountry adoptions and the responsible minister is designated as the Central Authority for Alberta.13



The Manitoba Adoption Act provides for intercountry adoptions outside the scope of the Hague Convention. A prospective adoptive parent who has been placed on the central adoption registry14 may request that he or she be considered for the placement of a child who resides in another country and who is legally available for adoption.15 A person who is applying in another country to adopt a child shall notify the director and the director shall verify specified information and provide specified supporting documentation required by the authorities of the child's country of residence.16



Before a child who is not a resident of the province is brought into British Columbia for adoption, the prospective adoptive parents must obtain the approval of the director of adoption or an adoption agency.17 This does not apply to a child who is brought into the province for adoption by a relative or by a person who will become an adoptive parent jointly with the child's birth parent or if the child is a permanent ward of an extra-provincial agency.18 



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