In Ontario, adoption is governed by the province’s Child, Youth, and Family Services Act (“the Act”), which came into force when a previous act, the Child and Family Services Act was repealed as of April 30, 2018. A recent decision from the Ontario Superior Court of Justice has resulted in a part of the Act dealing with adoption to be deemed unconstitutional. Plans to adopt become complicated The case stemmed from an application by two women (the “parents”), who live together in a platonic relationship, but not married, to adopt a child who had been placed in their care by the Children’s Aid Society of London and Middlesex (“the Society”). The child had been placed in the parents’ care by the Society in May 2015, just days after her birth. They met in university 12 years prior to the case being heard. They began living together after spending some time traveling after completing university. The child was made a Crown ward on May 12, 2016. One month later, the couple also began to foster a boy, who was a half-brother to one of the women. He was apprehended seven days later by the Society, but was placed back with the couple shortly thereafter and also made a ward of the Crown. Despite being in a platonic relationship, the two children and the parents functioned as a family. Both parents shared in all aspects of living costs, including a mortgage and car loan. They also share in chores around the house and in parenting their children. They also testified they are committed to living as a family and do not with to have a similar relationship with anyone else. The issue arose when the couple attempted to adopt the children. Despite the Society supporting this, the Act, as well as its predecessor, only allow two people to adopt a child if they are “spouses of one another.” The Act states “’spouse’ has the same meaning as in Parts I and II of the Human Rights Code,” which defines a spouse as “the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage.” The parents’ relationship, being platonic, fell outside of this definition. As a result, only one of them would be able to adopt the children, leaving the other with no legal status in regards to those relationships. The court weighs in The court emphasized that the purpose of the Act is to promote “the best interests, protection and well-being of children,” adding:

  • [116] The inability of both partners in a non-spousal relationship to adopt a child they have been parenting can create an adverse psychological impact on all members of the family. Ultimately, no demonstrable benefit can emerge from legislation proscribing joint adoption applications by two individuals living in a non-spousal relationship.
  • [117] I find that the distinction creates a disadvantage by perpetuating prejudice and stereotyping.
  • [118] I find that the impugned legislation discriminates against the applicants’ rights guaranteed by s. 15 of the Charter on the basis of marital status.

The Section 1 test The court determined that the violation could not be justified by Section 1 of the Charter, which states “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Supreme Court of Canada outlined the government’s burden in  establishing such a limitation in the 1986 decision R. v. Oakes. To satisfy this burden, the court must demonstrate:

  1. a sufficiently important objective to justify an infringement of a Charter right;
  2. a rational connection between that objective and the means chosen by the state;
  3. that the means are minimally impairing of the right at issue; and
  4. that the measure’s effects on the Charter-protected right are proportionate to the state objective.

The court found that the first step was justified, in that the Act’s objectives are sufficiently important to justify the infringement. However, the government failed to demonstrate the second step, because the absolute prohibition for couples not in a spousal relationship “reduces the number of individuals who can adopt children and detracts from the overall goal of the legislation.” The court also found the limit to not be minimal, and that there are no benefits accruing from the limitation, which means the government failed to demonstrate the final two steps of the test. The court ruled the appropriate remedy would be for the section of the Act which says “who are spouses of one another” to be of no force or effect. The exceptional lawyers at NULaw have extensive knowledge of Ontario and Canadian Family Law issues. We provide our clients with honest and practical legal advice on a full range of matters, including custody and access. We work tirelessly to protect our clients’ rights in a cost-effective and informative manner. Please contact us online or by phone at 416-481-5604 to see how we can help you today.

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