In the course of my practice I have met many stepparents that want to adopt their stepchild. The reasons to want to adopt a stepchild are very personal and diverse to the stepparent, child and their parent. Sometimes the biological parent is unknown or absent, due to death or other reasons. The stepparent may have been in the child's life for a significant period of time. Occasionally a stepparent seeks to adopt an adult stepchild. Usually the underlying reason that a stepparent wants to adopt their stepchild is about connections – the stepparent making the relationship and connection with the child legal and permanent, showing the child and the world that they are deeply committed to the stepchild and their relationship.
It must be noted that adopting a stepchild comes with significant legal, relational and financial consequences. By adopting the child the stepparent is legally assuming full parental rights and responsibilities and obligations for that child. An adoption Order is a very impactful and important Order to the child, parents, and family. After the adoption Order is made, in the event that the stepparent and spouse separate, the stepparent continues to have rights and obligations to the child.
What is required for a stepparent adoption?
Adoptions are governed by provincial legislation, being the Child, Youth and Family Services Act, 2017, S.O,. 2017, c. 14, Sched.1, in Ontario. Section 199(2)(c), specifically sets out that the Court may make an Order for the adoption of a child in the child's best interests, by the "spouse of the child's parent". Spouse can include the married partner of the stepchild's parent, the common law partner of the stepchild's parent, and also includes same sex couples. There are residency requirements for the adoption to occur, which is that the child must be a resident of Ontario before the Court can make an adoption Order.
The stepparent will commence an Application and will submit the required forms to the Court. Those forms will include a document called a Consent that will need to be completed by the stepchild and both of the child's parents.
Is consent required?
The child's parents must consent to the stepparent applying to adopt the stepchild. They will have to meet with a lawyer for independent legal advice as part of the process of signing a document called a Consent, which is required by the Court.
The stepchild's other biological parent, the one that may be absent from the child's life, if known, alive or locatable, has to be served with the adoption Application and also must consent to the adoption. If that parent is involved in the child's life, it is very unlikely the adoption will occur unless they provide their consent to the adoption.
Sometimes it is not possible to get the consent if for example, the other parent is deceased. There are other circumstances where a Court may dispense with the need to obtain the consent of the other parent, for example if the other parent is unknown, their whereabouts are unknown, or if there is the possibility of risk to the child if the other parent received notice of the stepparent adoption.
If the stepchild, is over the age of 7 they will have to consent to the adoption and meet with a lawyer who will explain to the child the nature and effect of the adoption, including what it means to sign the Consent, the circumstances where the child can withdraw their consent and the child's rights and the rights of others related to disclosure of adoption information. The lawyer has to confirm that they are satisfied that the consent of the child reflects the child's wishes that the adoption occur.
There is a 21 day "cooling off" period after the date the consent was signed, where the consent to the adoption can be withdrawn. If the consent is withdrawn during that 21 day period then the adoption will not proceed. If the 21 days has passed, and a party would like to withdraw their consent, there is a provision in the legislation to allow the Court to permit a late withdrawal of a consent, where it is in the child's best interests.
The Court will only make an Order for adoption if it is in the child's best interests. Some of the factors the Court will consider are:
- the child's views and wishes;
- the relationship the child may have with their biological parent;
- importance of a positive relationship between the child and parent;
- the benefit to the child of stability and continuity of care in their relationships;
- the stepparent and spouses' motivation for the adoption, etc.
Once the adoption order has been made, it is final and the other biological parent's rights and obligations to the child are terminated.
It is exciting that today we encounter so many different forms of families, including blended families. It must be remembered that biology is no longer the determinative factor for what relationships constitute "family".
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.