Adoption (3:XIII)

A. Legislation

1. Adoption Act, RSBC l996, c 5

The Adoption Act governs adoptions in BC. The Act provides for the licensing of adoption agencies. These agencies, in addition to the Director of Adoption, have exclusive authority for facilitating adoptions, matching birth families with adoptive parents, adoption planning, pre-placement assessment, placement services, and post-placement counselling and assessments for non relative adoptions in BC.

The Adoption Act enables any adult person to apply to adopt a child, or to adopt another adult person. Under ss 5 and 29, one or two adults may apply to adopt a child. This allows unmarried couples, including same sex-couples, to apply to adopt.

The Adoption Act says that a child may be placed for adoption by the Director of Child, Family and Community Service; an adoption agency; a parent or guardian of a child by direct placement; or a parent or guardian of a child, if the child is placed with a relative of the child. A direct placement means the placing of a child by a parent or other guardian with one or 2 adults who are not a relative of the child.

Section 37 of the Adoption Act states the effect of the adoption order. For all purposes, an adopted child becomes the child of the adopting parent(s) and the biological parents cease to have any parental rights or obligations with respect to the child.

Two legal exceptions under the Act are:

• a) an adopted First Nations child does not lose status, rights, privileges, disabilities, and limitations acquired under the Indian Act and other Acts (s 37(7)); and
• b) adoption adds a prohibited degree of consanguinity for the purpose of marriage or laws relating to incest (s 37(4)).

The adopted person takes the given names specified in the adoption order, and the surname of the adopting parents, unless the court orders otherwise (s 36).

Furthermore, openness agreements are recognized by statute (s 59) and may be entered into by the adoptive parents, the birth parents, and others with a relationship to the child, after consents to adoption have been signed.

An adoption effected under the law of a jurisdiction other than BC is valid in BC as though it had been made under BC’s adoption legislation (s 47). Part 4 of the Adoption Act deals with interprovincial and intercountry adoptions. Before a person brings a child into the province for adoption they must obtain the approval of a director or an adoption agency.

Part 4 Division 2 deals with intercountry adoption of children from countries that are signatories to the Hague Convention on Intercountry Adoption. To complete an adoption from a foreign country, whether that country is a “Hague Country” or not, a person needs the approval of the British Columbia Central Authority.

Under the Adoption Act, ss 63(1) and 64(1), birth records may be disclosed to both birth parents and adult adoptees. The Reunion Registry facilitates reunions and disclosure of records. The Act provides for filing of non-disclosure vetoes and no-contact vetoes (ss 65 and 66).

B. Procedure

1. Consent

Section 13 of the Adoption Act requires that no adoption order may be made without the written consent of:

• the child, if 12 years of age or over; children aged between 7 and 11 must be interviewed to ascertain whether they understand the meaning of adoption, and their views on the proposed name changes and a report must be filed with the court;
• the child’s parents, the birth mother can not sign consents until the child is at least 10 days old. The consent of the biological father, who is not presumed to be the child’s biological father under s. 26 of the Family Law Act, is not required unless the biological father acknowledges he is the father and is named as the father by the child’s birth mother;
• the child’s guardians;
• where a child is a permanent ward of the Director of Child, Family, and Community Service, the Director, as guardian, must consent.

The court may dispense with the need for consent from some of these parties. Parental consent may be dispensed with if it is in the best interest of the child or if the person has abandoned or deserted the child, cannot be found, is incapable of giving consent, has persistently neglected or refused to contribute to support he or she is liable for, or is a person whose consent ought, in all the circumstances of the case, to be dispensed with (s 17). The consent of a child over 12 years of age can only be dispensed with if the child is not capable of giving an informed consent (s 17(2)).

A person’s consent must be in the form of an affidavit sworn in front of a notary or a lawyer. Each affidavit must state that the effect of the consent and of adoption was fully explained to the person consenting, and that he or she signed the consent freely and voluntarily.

How and when a person can revoke their consent is set out below in section 6.

2. Notifying the Director of Adoption

Within 14 days after receiving a child into their home for the purposes of adoption, the prospective adoptive parents must notify, in writing the Director of Adoptions or an adoption agency (s 12).

A person wishing to apply to adopt must notify the Director of Adoption in writing of his or her intention (s 31) at least 30 days before filing the application unless:

• the child has been placed in a licensed adoption agency;
• the child is related to the applicant by blood; or
• the applicant is the child’s stepparent.

The Director of Adoption then makes an inquiry and files a report with the court before the hearing date. At least 30 days before the date fixed for the hearing of the application or an application to dispense with consent, the applicant must give a copy of the application with a notice of the date of hearing to the Director or licensed adoption agency.

The court may dispense with the times needed for the notices where the Director’s report shows good cause that the waiting period is not necessary to protect the interests of all parties (s 6(9)).

In cases of a “direct placement", potential adoptive parents must notify either the Director of Adoption or an adoption agency as soon as possible before the child is received in their home, and then in writing within 14 days after the child is received. Prior notice is required to allow the adoption agency or the Director of Adoption to receive or provide information to and from the birth and adoptive parents. Such information may include providing alternatives to the birth parents, doing a pre-placement assessment of the adoptive parents, counselling adoptive children if necessary, and ensuring that children over 12 have given an informed consent.

Under s 33, a post-placement assessment must be made by either the Director of Adoption or an adoption agency, providing a recommendation on whether the adoption should be made or not, or whether insufficient information is available to make the determination.

3. Adoption by the Child’s Blood Relatives or Stepparents

The Director of Adoption does not need to be notified or make a report where one adult may apply to the court to become a parent of a child jointly with another parent, or where a blood relative of achild applies to adopt the child.

In the case of stepparent and blood relative adoptions, the application may not be made until the child has lived with, and been in the custody of, the applicant for at least six months prior to the application, except by order of the court. The court may still order a report from the Director. Wherea report from the Director is not necessary, the material filed in support of the application should inform the court:

• in whose care the child has been under since birth;
• if the parents have consented or proper reasons for the omission of such consent;
• how long the applicants have been married;
• the ages and occupations of the applicants;
• whether or not either of the applicants have any other children living with them;
• that the applicants have the ability to bring up, maintain and educate the child; and
• any unusual circumstances relevant to the application.

4. Where all Parties Have Consented to Adoption

If all of the necessary consents have been obtained, no notice need to be given and the application is made under Rule 17-1(24) of the BC Supreme Court Family Rules. The real application is thus the Requisition made to the registry and all other documents can be “the material on which the application is founded”.

5. Where a Consent is Not Obtained

Where a consent is not obtained, Rule 17-1(24)0-7(1) cannot be used and an application must be made to the court to dispense with consent. Subject to circumstances where s 42 of the Adoption Act apply, an application under s 11 of the Adoption Act dispensing with notice of a proposed adoption to a birth father and an application under s 17 of the Adoption Act dispensing with consent to an adoption, may be included in an application for an order for adoption under Supreme Court Family Rule 17-1(26). See [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx | Family Practice Direction 1: Adoption Applications.

Since it is preferred that the petition not contain requests to dispense with consents, the applicantsshould file, with the petition, a Notice of Motion and supporting affidavit under Rule 44 asking that such consent be dispensed with. Note that for the application for an order dispensing with consent to be granted there can be no person whose “interests may be affected” by the adoption order.

6. Revocation of Consent

Fraud, undue influence, or duress may invalidate consent. In the absence of such defect with the agreement, the court may only revoke consent if it is in the best interests of the child.

Consent may be revoked in writing before the child is placed (s 18). The birth mother may revoke her consent within 30 days of the child’s birth regardless of the child’s placement. The child may revoke consent at any time before the order is made (s 20). After the child has been placed, subject to the above, consent may be revoked only by court order and only if it would be in the best interests ofthe child. The application for revocation of consent must be made before the granting of the adoption order (s 22).

A person who consents to an adoption may revoke his consent prior to the child being placed if the revocation is in writing and received by the director or agency before placement.

7. Checklist for Filing an Adoption

The necessary documents for an adoption application can be found on the BC Supreme Court website.

The applicant should include:

• the petitioners’ affidavit;
• Petition to the Court (Form F73);
• affidavit of parent’s consent to adoption;
• paternity affidavit of birth mother if no father named;
• birth parent expense affidavit, sworn by the adoptive parents;
• requisition to have adoption heard in chambers, if necessary;
• Notice of Hearing of petition (Form F75), if necessary;
• Requisition re: Desk Order for Adoption, if the adoption is uncontested and the necessary consents have been obtained; and
• Desk Order for Adoption (no hearing necessary); and/or order after hearing in chambers.