Adoption

From Clicklaw Wikibooks

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child. At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the Ministry for Children and Family Development, and provides contact information for the four adoption agencies licensed in British Columbia.

Introduction

There are two basic kinds of adoption: adoption within a family unit by a relative or stepparent, with the consent of the natural parent; and, adoption by a stranger through an agency. The first kind can be handled privately through the court process. The second kind requires either the involvement of the Adoptive Families Association of British Columbia, a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial Adoption Act sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act describes a number of factors that should be considered in determining what is in the child's best interests.

(1) All relevant factors must be considered in determining the child's best interests, including for example:

(a) the child's safety;

(b) the child's physical and emotional needs and level of development;

(c) the importance of continuity in the child's care;

(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;

(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;

(f) the child's cultural, racial, linguistic and religious heritage;

(g) the child's views;

(h) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.

The Adoption Act recognizes four types of adoption:

  1. relative adoption, where a child is adopted by a relative or stepparent,
  2. placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a direct placement,
  3. placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
  4. placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

The effect of adoption

Section 37 of the Adoption Act sets out the consequences and meaning of an adoption and says:

(1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.

(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,

(a) the adult joins the birth parent as parent of the child, and

(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, Zien v. Woda, 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including with respect to how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment they receive, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

Who can place a child for adoption

Section 4 of the Adoption Act says that:

The following may place a child for adoption:

(a) the director;

(b) an adoption agency;

(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;

(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.

Who can receive a child for adoption

Section 5 of the Adoption Act says that a child can be placed for adoption with one or two people, as long as they live in the province.

(1) A child may be placed for adoption with one adult or 2 adults jointly.

(2) Each prospective adoptive parent must be a resident of British Columbia

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.

(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.

(3) Each applicant must be a resident of British Columbia.

The Adoption Act doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

Who must consent to the adoption

According to s. 13 of the Adoption Act , the following people must provide their consent to a proposed adoption:

  1. the birth mother of the child,
  2. the natural father,
  3. the child's guardian, if someone has been appointed to fill this role,
  4. the child, if the child is 12 years of age or older, and
  5. the Director under the Child, Family and Community Service Act, but only if the child is in the care and custody of the government.

The Act also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The Act also provides that a parent under the age of 19 may give a valid consent.

Revoking consent

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

  • A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
  • A child can revoke their consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

The private adoption process

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

Direct placement by a birth parent

Firstly, the adoptive parents must notify the Director of the Ministry for Children and Family Development's Adoption Division of their intent to adopt a child by filing a Form 1 of the Adoption Act Regulation with the Ministry. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a pre-placement assessment of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

  • the child, if the child is 12 years of age or older,
  • the birth mother,
  • the child's natural father, if known, and
  • the child's guardian, if anyone has been appointed as such.

The Adoption Act requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

  • the court makes an adoption order,
  • any of the consents to the adoption are revoked, or
  • the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the Supreme Court Family Rules, once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the Adoption Act provides the details of the court process that will occur after this point, including: the documents that must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

Relative adoption

The process for relative adoptions is a lot easier, mostly because the Adoption Act exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with their birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the stepparent) of the child loses their rights and obligations in relation to the child.

Adoption through the Ministry

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

  • the name, address, education and present employment of each applicant,
  • the work history of each applicant,
  • the cultural and racial background, and religion or belief system of each applicant,
  • the applicants' interests and hobbies,
  • the names of other children and other members of the applicants' household, including boarders,
  • a statement of the family finances, and
  • the names and addresses of four personal references.

You can access a summary of the process on the BC Ministry of Children and Family Development website, and read a helpful summary of the process. A more succinct summary is available at the Adoptive Families Association of BC website.

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a homestudy. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in their community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what they consider to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with them to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

Adoption agencies

The following four organizations are licensed by the provincial government under the "Adoption Act" to operate as adoption agencies. These are all of the licensed agencies in British Columbia.

Choices Adoption & Counselling Services

100-850 Blanshard Street
Victoria, British Columbia, V8W 2H2
Phone: 250-479-9811
Fax: 250-479-9850

Toll Free: 1-888-479-9811

Family Services of Greater Vancouver

301-1638 East Broadway
Vancouver, British Columbia, V5N 1W1
Phone: 604-736-7613
Fax: 604-736-7916

Toll Free: 1-866-582-3678

Sunrise Adoption Centre

102-171 West Esplanade
North Vancouver, British Columbia, V7M 3J9
Phone: 604-984-2488
Fax: 604-984-2498

Toll Free: 1-888-984-2488

The Adoption Centre of British Columbia

620 Leon Avenue
Kelowna, British Columbia, V1Y 9T2
Phone: 250-763-8002
Fax: (250) 763-6282

Toll Free: 1-800-935-4237


Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Wright and Michael Sinclair, July 30, 2018.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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