Is A Biological Parent Entitled To Notice When Their Adult Child Is Being Adopted?

Written on behalf of Arbesman Hamilton LLP

Adoptions typically involve children being adopted by adults. However, there are instances when someone might apply to adopt an adult. Situations where someone might want to adopt an adult could be to formalize an existing parent-child relationship. Such was the situation in a recent case before the Ontario Court of Justice. The wrinkle in this situation was whether the adoptee’s biological father was entitled to notification of the adoption.

The background

The child involved in the case was born in 1991 and has not seen his biological father (the “biological father”) since he was 12 years old. His mother remarried in 2005, and her husband (the “father”) has acted as D’s father since 2004. D has not lived with his mother or father since he moved out to attend university, and is now financially independent, living with his wife.

D’s father applied to adopt D on October 18, 2017. Neither D nor his father wished to notify D’s biological father, with whom D has not had any contact with. The judge in the case did not grant the application when it was first presented. Instead, the case was adjourned, in part to allow D and his father to make submissions on the issues of notice and consent of the biological father.

D was pleased that his father brought up his wish to formalize his role as father. He has acted as D and D’s brother’s father since 2004. The court agreed with D and his father that D had withdrawn from parental control and is an independent adult. The judge also found that D understood the nature and consequences of the adoption proceedings. D reviewed the adoption with independent counsel, who he retained to offer advice throughout the proceeding. The reason D did not want to notify his biological father of the adoption was in order to avoid opening “old wounds.”

Is consent required?

The court first looked at whether consent of the biological father was required.

The court’s authority to make an order for the adoption of an adult over 18 years of age, or a child 16 years of age or more, who has withdrawn from parental control, is laid out in subsection 146(3) of the Child and Family Services Act (“CFSA”). Section 137(2) of the CFSA explains, “that the consent of a parent to the adoption is required where the child is less than 16 years of age and, where the child is more than 16 years of age but has not withdrawn from parental control.  The biological parent’s consent, can however, be dispensed with pursuant to subsection 138(1).”

The court concluded that since D was over 18, his adoption did not require the consent of his biological father. The court also relied on common law to confirm its conclusion. As a result, there was no need for an order dispensing with the biological father’s consent.

Is notice and service required in adult adoptions?

After concluding that the biological father’s consent was not needed, the court then turned to whether the biological father was entitled to notice and service of the adoption.

Subsection 151(4) of the CFSA lays out the circumstances in which a biological person is not entitled to notice. The CFSA states:

(4)   No right to notice.—   No person,
  (a)   Who has given a consent under clause 137(2)(a) and has not withdrawn it;

(b)   Whose consent has been dispensed with under section 138; or

(c)   Who is a parent of a Crown ward who is placed for adoption,

Is entitled to receive notice of an application under section 146.

 

In this case, D and his father submitted that since the biological father was not entitled to consent, he should also not be entitled to notice. However, the court determined that the biological father did not fit the profile of a biological parent not entitled to notice. The court also stated that “the court is bound by the principles of fundamental fairness. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. Even more importantly, the court is bound by the Charter and obliged to ensure that the rights afforded to individuals under section 7 of the Charter, are not infringed arbitrarily.”

The court ordered that the biological father was entitled to notice.

The lawyers at Arbesman Hamilton LLP are dedicated to protecting our clients’ interests. We take a compassionate and experienced approach with our family law clients. Please contact us if you are contemplating a separation or divorce, or if you are working through issues of custody or access. You can call us at 416-481-5604 or reach us online to book a consultation today.