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Adult adoptions: Process, forms need to be changed | Imran Kamal

Wednesday, July 14, 2021 @ 9:51 AM | By Imran Kamal

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Imran Kamal %>
Imran Kamal
Although childhood legally ends at the age of 18, anyone who is a parent knows that young adults still require the support and love of parents, and that this need continues throughout their lives.

Adult adoptions are most common where an adult is estranged from biological family, emotionally or legally as in the case of someone who was formerly in extended society care and has chosen another family for support. Examples include but are not restricted to adults who wish to be adopted by a former foster family, or LBGTQ adults who have been rejected by biological family and seek a new supportive family. As will be discussed below, the process and forms are inappropriate.

Many youth in the foster care system have said that “ongoing permanency after aging out of care” and “yearning to be part of a family” are crucial gaps in the system that get in the way of youth success once leaving care. Research and years of experience show that finding permanent family is the number one factor in improving the outcomes for youth in foster care.

“Family” in this case is not necessarily the traditional nuclear two-parent household but speaks instead to at least one adult who will forever love and safely care for that young person and give them lifelong stability.

Statutory pathway:

Section 199 of the Child, Youth and Family Services Act reads:

(3) Adoption of adult, etc. — The court may make an order for the adoption of,

(a) a person 18 or older; or
(b) a child who is 16 or older and has withdrawn from parental control, on another person’s application.

(4) Who may apply — An application under this section may only be made,

(a) by one individual; or
(b) jointly, by two individuals who are spouses of one another.

Section 205 (4) of the Child, Youth and Family Services Act reads:

(4) Participation of an adult, etc. — Where an application is made for an order for the adoption of a person under subsection 199(3), the court shall consider the person’s views and wishes, and on request, hear the person.

Section 203 (1) of the Child, Youth and Family Services Act reads:

(1) Place of hearing — An application for an adoption order shall be heard and dealt with in the county or district in which,

(a) the applicant; or
(b) the person to be adopted,
resides at the time the application is filed.

Case law

As held in Re C.L.W. 2018 ONCJ 223, paragraphs 66 and 67 and MacBeth (Re) [2013] O.J. No. 2516, paragraph 12, the court will typically require affidavit evidence from the adoptive parent(s) and adoptee that shows:

(1) The adoption would create an actual (not just legal) change in the relationship between the applicant and the proposed adoptee;
(2) Both parties are aware of the legal incidents of adoption, and intend those incidents to govern their new relationship;
(3) The application is motivated by the psychological and emotional need of the proposed adoptee for a new parent or for a parent to “fill the gap” in the parenting of the proposed adoptee; and,
(4) The relationship between the applicant and the proposed adoptee would be “enhanced and strengthened” by the adoption order.

The court may also consider:

  1. Whether the interaction between the applicant and the proposed adoptee is materially and substantially a parent-and-child interaction, assessed not just subjectively by the two individuals at issue, but also from an objective perspective;
  2. Whether the parent-and-child relationship between the applicant and the proposed adoptee has any counterpart in any of the proposed adoptee’s other relationships; in short, whether an adoption is merely adding a parent to the adult child’s life or rather replacing a former parent;
  3. Whether the adoption will advertently or inadvertently defeat the legitimate claim of the proposed adoptee’s existing parents under other legislation also enacted for the public good and
  4. Whether the application is made in good faith.

As stated in Re C.T.A. 2010 ONSC 2222, paragraph 3, an adoption application must consider four legal issues:

1. Whether the adult adoptee is an Ontario resident as required by [now s. 199(5) of the CYFSA];
2. Whether the application is brought for a collateral purpose related to immigration status;
3. Whether the essential purpose of adoption, namely to fill a parental gap, is met; and,
4. Depending upon the resolution of the first three issues, the court may proceed to consider whether the proposed adoption will promote the adult child’s best interests, protection and well-being.

For more information please contact the Never Too Late project at the Adoption Council of Ontario.

Imran Kamal currently sits on the Family Law Subcommittee of the Hamilton Law Association and the Bench and Bar subcommittee of the Hamilton Law Association. He is also a volunteer advocate for the Adoption Council of Ontario.

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