Integrating a new partner into your existing family can be an exciting step, but it is not always without challenges. Depending on whether the children's other biological parent is still in the picture, your children's age, and their opinion, the process of adoption could be difficult and you may face additional legal challenges.
Is the other biological parent still in the picture?
Unless the other biological parent is deceased or has abandoned the child, their consent to the adoption is required, because the adoption severely affects that parent's rights with respect to the child. The step-parent, upon adoption, will obtain full parental rights. They will have increased rights to make decisions regarding your child's medical treatment, education, their residence, and so on. The other biological parent will cease to be the child's parent upon the order for adoption, (s. 217 (2)(b) of the Child, Youth and Family Services Act, 2017, [the "Act"]). The other biological parent's ability to obtain an order for access to the child once the adoption order is issued, becomes much more difficult. Given these significant implications, and of course depending on each unique situation, it is likely that it will be difficult for you to obtain the other biological parent's consent.
The Test to Dispense with Consent of the Biological Parent:
One possibility to circumvent this onerous requirement is to apply to the court for permission to adopt without the consent of the other biological parent. The permission to adopt without the other biological parent's consent will only be granted in a very narrow set of circumstances, and only if the court is convinced that it would be in the best interest of the child to do so. The factors the court will consider in determining the best interest of the child are listed at s. 136 of the Act:
- The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
- The child's physical, mental and emotional level of development;
- The child's cultural background;
- The religious faith, if any, in which the child is being raised;
- The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family;
- The child's relationships by blood or through an adoption order;
- The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity;
- The child's views and wishes, if they can be reasonably ascertained;
- The effects on the child of delay in the disposition of the case; and
- Any other relevant circumstance.
In a motion brought to the Ontario Superior Court in 2016, a mother sought to dispense with the biological father's consent to her new spouse adopting her ten year old biological son. However, the biological mother never informed the biological father of his son's birth. After discovering he had a ten year old son, the biological father wished to establish a relationship with the child (S.D.K. v M.G.C., 2016 ONSC 4586). In this case, even though the child had provided consent to the adoption, the court dismissed the motion after considering the above-mentioned factors. The court explained that an adoption is final and irrevocable and would cut "any possibility of ties" between the child and the biological paternal side of the family. Furthermore, the child's maturity level and understanding of the adoption process was not established clearly to the court through evidence. The court was also not convinced that denying the adoption order would destabilize the existing family unit. For these reasons, the child's consent did not convince the court that the adoption - and dispensing with the biological father's consent – would be in the best interest of the child.
Is the biological parent unknown or unreachable?
If, on the other hand, the other biological parent is unknown, or cannot be reached, the adoption will become somewhat easier. However, an application to court to obtain permission to proceed without consent is still necessary. The court must be convinced that the other biological parent cannot be located, despite reasonable efforts, and that it is in the child's best interest to dispense with the consent requirement.
Does my child need to consent?
The answer to this question depends on the child's age. A child who is under 7 years of age is not legally required to consent to being adopted. However, if the child is between 7 and 18 years old, their written consent is a necessary condition for the adoption under s. 180 (6) of the Act. In this case, the child is entitled to an opportunity to receive counselling and independent legal advice to determine their wishes. For a child under the age of 18, the Children's Lawyer must be satisfied that the consent is fully informed and reflects the child's true wishes. The Children's Lawyer represents children under the age of 18, and is provided by the provincial government to ensure independent advice and assessment. The court itself will also take into account the child's wishes and may assess the child's capacity to understand what it means to become adopted.
Once a child has turned 7 years old, the child's consent can be dispensed only under narrow circumstances. Again, an application to court is necessary. The court must be convinced that obtaining the consent of the child would cause emotional harm to the child, or that the child is not able to consent because of a developmental disability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
