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In a recent Ontario case, the court considered the interesting question of whether parental consent for adoption is required for, and whether a parent is entitled to notice of, an application to adopt an adult.
What Happened?
The adult child, D, was born in October 1991. D had a mother and a stepfather. He had not seen his biological father since he was approximately 12 years old.
D was now working, financially independent and married himself. D lived with his wife in Burlington, Ontario.
The stepfather wanted to adopt D. D and his mother both provided their consent to the adoption.
The stepfather brought a motion for an order dispensing with the consent of D’s biological father, and for an order dispensing with notice and service of any order made on his motion.
The Stepfather’s Position
The stepfather filed evidence in support of his request to dispense with notice and service of the adoption application. The stepfather indicated that:
- D, as an adult, fully understood the nature and consequences of the adoption proceedings.
- He and D did not wish to send notice of the proceedings to D’s biological father.
- D was pleased when he brought up his wish to formalize his role as D’s father.
- He did not wish to open “old wounds”.
Parental Consent
The court began by outlining that section 137(2) of the Child and Family Services Act (the Act) provides that the consent of a parent to adoption is required where the child is less than 16 years old, and where the child is more than 16 years old, but has not withdrawn from parental control.
The court noted that there is no equivalent provision in the Act for proposed adoptees who are over the age of 18 (or more than 16 years of age and have withdrawn from parental control), and concluded that this had to be seen as an intentional omission. As a result, the court found that parental consent is not required for the adoption of an adult.
In this case, given that D was an adult, the consent of his biological father was not required. It therefore followed that an order dispensing with his consent was not required.
Notice and Service
Despite the fact that the consent of D’s biological father was not required, the court found that an adult adoptee’s biological parent is entitled to notice, and to be served with a copy, of the adoption application, any motion materials and any orders made in the adoption proceeding.
Specifically, the court outlined that section 151(4) of the Act sets out only three circumstances where service of notice of an adoption application is not required, and explained the rationale behind each:
- Where a person has given consent under section 137(2)(a) of the Act and has not withdrawn it. In that case, notice is not required because in giving consent, the parent has confirmed receipt of notice of the adoption.
- Where a person’s consent has been dispensed with under section 138 of the Act. In that case, notice is not required because the person whose consent is being dispensed with is supposed to be the party to the motion or application to dispense with his or her consent (and by being served with the application or motion to dispense with consent, the person effectively receives notice of the proposed adoption).
- Where the person is a parent of a Crown ward who is placed for adoption. In that case, the parent’s rights have been terminated, in part, for the purpose of adoption. The parent would have received effective notice of that plan in the proceedings that resulted in the order making the child a Crown ward.
Upon reviewing these three exceptions, the court determined that D’s biological father did not fall within the class of parents who had no right to notice.
The court also noted that the parents of an adult adoptee need to receive notice of an adoption application because parents have legal rights and an adoption order would irrevocably terminate those rights. Furthermore, the court explained that it is a principle of natural justice that a parent receives both procedural and substantive protection.
In the end, the court concluded that D’s biological father was a person whose voice should be heard. The court found that D’s biological father’s input – especially with respect to the impact the adoption would have on any of his legal rights and positions – would enable it to decide whether to grant the adoption application. For this to happen, the biological father had to receive notice of the adoption application, motion and orders made in these proceedings.
The court therefore added D’s biological father as party to the proceeding and declared that he was entitled to notice of the adoption application, this motion, as well as any order(s) that flow from it.
Lessons Learned
Unless they fall into one of the three enumerated categories listed above, the biological parents of a child – even an adult child – are entitled to notice of any adoption proceeding, as an adoption order will irrevocably alter their legal rights.
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