Adoption

Adoption, is the legal process of severing ties between a child and his or her biological parents (or "birth parents" as they are called today), who are unable or unwilling to care for the child, and creating new ties between a child and people who are not her or his natural parents.

Adoption

Adoption, is the legal process of severing ties between a child and his or her biological parents (or "birth parents" as they are called today), who are unable or unwilling to care for the child, and creating new ties between a child and people who are not her or his natural parents.

Adoption, which is governed by provincial law, was introduced into Canadian common law (see Family Law) beginning in New Brunswick in 1873 to save "illegitimate" children from the stigma of illegitimacy and place them with couples unable to have their own children (though some provinces, eg, Ontario, have recently amended their laws to remove the status of "illegitimacy").

Because more single mothers now keep their own children, those adopted are often older, sometimes physically or mentally handicapped and sometimes from disadvantaged groups, although increasing numbers of children are being adopted from families that ended in divorce. There are usually different stages in the adoption process. For example, the applicants are screened by welfare authorities before a child is placed, although the restrictions formerly employed to restrict joint applications to adopt to married persons may infringe the equality provisions of the Canadian Charter of Rights and Freedoms.

In some provinces independent adoptions are possible, provided no payment is involved. The restrictions on advertising or payment of money in return for a child are difficult to enforce given the lack of children available for adoption. There then follows a probationary placement in the adoptive parents' home and finally a court hearing to determine whether an adoption order should be made. If an adoption order is made, the adoptive parents become the legal parents of the child, who acquires succession rights and the surname of the adoptive family, although in some provinces the child may retain rights against his natural family under provincial succession laws. In some provinces the granting of an adoption order extinguishes all of the rights and responsibilities natural parents have regarding the child.

The adoption process normally requires the consent of the natural parents, though that of the father of an illegitimate child is not always necessary. In some provinces the consent of the natural father is normally required, and in most provinces he can seek custody of the child in order to defeat the custody application. The court has power to dispense with the need for such consent in specified circumstances. If the child is of a specified age (often 12 years), his or her consent is also necessary. Adoption by consent is by no means the only method. In some provinces the provincial government can remove children form their natural parents or other guardians if it feels the children are in danger, are being neglected, or are simply not having their needs met. The provincial government can assume guardianship of such children via court order, place them in the care of foster parents, and ultimately place them for adoption if suitable adoptive parents are willing and able to adopt.

Since 1982 in Québec the Civil Code has governed adoption with much the same effect as does the common law in the rest of Canada. Earlier laws attempted to make it impossible for children to be adopted outside their religion at birth, and this was a manifestation of the strong clerical influence on Québec society.

Adoption is a social as well as a legal process. The practice of adoption has changed in response to changing social attitudes and needs, but the legal process has not kept pace with these changes. There is now mounting pressure from adopted persons for contact with their birth parents to be made possible, and vice versa. Some provinces, such as Ontario, operate a system (the Voluntary Disclosure Registry) to facilitate voluntary disclosure, where adopted persons, having attained the age of majority, can indicate to the registry that they would like to contact their birth parents, and if the birth parents have registered the same request the connection will be made. Before adopted persons reach the age of majority the adoptive parents can veto contact with the birth parents.

Other current issues include the debate over the child's right to consent to adoption (at present in Ontario, for example, a child 7 years of age or older must consent); the possibility of subsidized adoptions to facilitate adoption by parents who otherwise could not financially support a child; and the consideration, in recent years, of the concept of open adoption in which birth parents and adoptive parents would co-operate constructively in the adoption process.


Further Reading

  • D.W. Phillips, R.J. Raphael, D.J. Manning and J.A. Turnbull, Adoption Law in Canada (1995).