Many of our clients come to our firm because they require a lawyer’s assistance with the ‘legal side’ of a momentous event in their lives: buying a first home, incorporating a company for a new business venture, administering the estate of a loved one who has passed, or working through a spousal separation, to name a few. However, as momentous as these examples are, perhaps none are more so than the decision to become a parent through adoption.
This blog post gives an overview of the legal effect and procedures of adopting a child in the Province of British Columbia. It does not act as a substitute for legal advice. If you are considering adopting a child or consenting to the adoption of your child, consult with a lawyer.
The Adoption Act and the Effect of Adoption
The principles, procedures and effect of adoption in British Columbia are governed by the Adoption Act. The purpose of this legislation is “to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child’s best interests” (RSBC 1996, c 5, s 2).
Once a child is adopted, they become the child of the adoptive parent or parents, and the birth parents cease to have any parental rights or obligations. The adoptive parents become the legal guardian of the child and the right of the birth parents to contact, access or make decisions with respect to the child is typically terminated. In the case of a step-parent adoption, a birth parent will adopt their own child jointly with the adoptive parent to maintain their parental rights and obligations.
An Overview of the Process for Adoption
Generally speaking, an adoption may be divided into the following three stages:
- The pre-placement stage (before the child begins residing with the adoptive parents): During this stage efforts are made to obtain the appropriate consents and homestudies or pre-placement assessments may be conducted depending on the type of adoption. Except for in the case of a relative adoption, adoptive parents will need the assistance of an adoption agency to fulfill these pre-adoption procedures.
- The placement stage: A child is “placed” for adoption with the adoptive parents, meaning that they begin to reside with the adoptive parents with the intention that the adoptive parents will adopt them after a period. A child must live with the adoptive parents for at least six months before an adoption order can be made. Except for in the case of a relative adoption, at the end of the six-month period a post-placement report will be made by an adoption agency; and
- The application stage: At the end of the six-month residency requirement, the prospective adoptive parents may apply to the Court to adopt the child.
The Types of Adoption
Under the Adoption Act there are five ways a child may be placed for adoption:
- Placement by a director of adoption: This includes placements by the Ministry of Children and Family Development, where the Ministry has care and custody of the child or is the child’s guardian;
- Placement by an adoption agency: Currently, there are three adoption agencies that are granted exclusive authority for adoption planning and placement in British Columbia. Birth parents may contact an adoption agency before or after the birth of their child to have the agency arrange for the adoption of their child;
- Adoption of children in foster care;
- Direct Placement: This is where a parent or other guardian of a child places the child for adoption with one or two adults, neither of whom are a relative of the child; and
- Relative adoption: This is where a parent or other guardian of a child places the child for adoption with one or two adults, at least one of whom is a relative of the child. This includes adoptions by a step-parent.
Several of the procedures for adopting a child will vary depending on the type of adoption.
Who Must be Told About the Adoption or Agree to the Adoption?
Determining who is required to consent to an adoption, obtaining consent, and, if necessary, applying to dispense with consent, can be among the most complex and challenging aspects of an adoption application. This is one area where the assistance of a lawyer can be invaluable.
In a direct placement adoption, the prospective adoptive parents must notify a director of adoption or an adoption agency as soon as possible after deciding to receive a child for adoption.
In cases where the child is in the continuing custody of a director of child protection, or a director of child protection is the child’s guardian, the consent of the child’s birth parents will not be required. However, the consent of the director of child protection will be. In all other cases, the birth parents must agree to the adoption. In some cases, there may be disagreement about or a lack of certainty around who the birth father is. A lawyer can advise you as to whether the birth father’s consent will be required in the circumstances.
Regardless of the type of adoption, a child over 12 must agree to their adoption. Where a child is between the age of 7 and 12, an authorized individual must meet with the child and make a written report on the child’s views of the adoption.
Procedure for Adoption Applications
The adoptive parents must apply to Court for an order that they have adopted the child. This is typically done by “desk order”. This means that a lawyer does not have to go to Court to argue for the order in front of a judge, nor do any witnesses need to go to Court to give oral testimony. Instead, all materials are written and all evidence is given by way of written affidavits.
In addition to the affidavits, the following documents are also filed in the Court to support an application for an adoption; the required consents, the post-placement report; a draft order, the child’s original live birth registration or original birth certificate and a Vital Statistics Form. Once all of this material is filed in court, it may take anywhere from a few weeks to several months to before the Adoption Order is entered.
Our lawyers are experienced in working with adoption agencies and in applying for adoption orders. We would be honoured to assist you with taking this incredible step in your life.
The information contained in this article is for general purposes. It does not constitute legal advice. It is not to be construed as a warranty, guarantee and should not be relied on. Do not act on the information in this website without consulting your lawyer or a lawyer who can provide legal instructions relevant to the full scope of your matter.
September 20, 2019