One of the most important decisions a parent may have to make during their lifetime is the decision to adopt a child, whether a stepchild, a relative, or a friend, etc. Once a person decides they wish to adopt, next comes the daunting task of carrying out the adoption. Our aim is to shed some light on the process and on the effects of adoption on the parties involved, namely, the child being adopted, the child’s biological parents, and the child’s adoptive parents.
The basic process and principles relating to adoption come from the provincial Adoption Act, the purpose of which is to provide for new and permanent family relations through adoption. As in all other matters involving children, the courts are primarily concerned with the best interests of the child. Section 3 lists the following factors that must be considered:
- (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 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.
If the child is an aboriginal child, Section 3(2) states that the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests. In British Columbia, a child may be placed for adoption in four ways:
- Placement by a director of adoption;
- Placement by an adoption agency;
- Direct placement (parent or guardian of child placing child for adoption with a person or two persons, who are unrelated to the child);
- Relative adoption.
Our focus is on the latter two methods (private adoptions) and as such, the following people and bodies are the only entities that may place a child for adoption:
- a birth parent or guardian of the child by direct placement;
- a birth parent or other guardian related to the child, if the child is placed with a relative of the child.
The Supreme Court of British Columbia has jurisdiction over adoption. One adult or two adults (same or opposite sex) can apply to the Supreme Court for an adoption order. Each applicant must be a resident of British Columbia. Section 13 of the Adoption Act, states that the following people must provide their consent to the proposed adoption:
- the birth mother of the child;
- the natural father;
- the child’s guardian, if someone has been appointed to fill this role;
- the child, if the child is 12 years of age or older, and
- the Director under the Child, Family and Community Service Act, but only if the child is in the care and custody of the government.
It is important to understand that when an adoption order is made, the child becomes the child of the adoptive parent, the adoptive parent becomes the parent of the child, and the birth parent(s) cease(s) to have any parental rights or obligations with respect to the child, except a birth parent who remains a parent jointly with the adoptive parent. Accordingly, a birth parent has no more legal rights to the child than, effectively, a stranger. This includes any contact with the child or any involvement in decisions relating to the child. On the same coin, a birth parent who was paying child support will no longer be obligated to pay child support once the adoption has taken place (this is one of the two ways a person can avoid paying child support; the other way is to have the child live with you). See Zen v. Woda for a summary of the law on this point.
Most adoption applications are unopposed and are accordingly processed via desk order, meaning that the parties draft and file hard copy applications including affidavit materials. A judge will review the materials and sign the proposed adoption order. Typically, a lawyer drafts this paperwork and files it with the court. Depending on how busy the workload of the registry is at a given courthouse, adoption orders can be signed by a judge and sent back to the parties in just a matter of a few weeks. If the registry is busy, it may take several months. If an application is opposed, or a required consent is not obtained, a court hearing may be held. In this scenario, a judge makes a decision based on the evidence provided.
The procedure for adoption differs for direct placements and relative adoption. Both processes involve filing court forms and drafting applications, affidavits, and the proposed adoption order. It is a good idea to have a lawyer draft these documents for you. This will ensure accuracy, which will ultimately reduce the time it takes for your child to become your child under the eyes of the law. Our staff and lawyers are experienced in processing adoption applications.
Call us to better understand your rights and obligations, and the process as it applies to you and your family.
If you have a family law matter, please contact one of our lawyers in the Family Law practice group.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.