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Adoption – Dispensing with Consent

Aida Rafie

Adoption – Dispensing with ConsentAdoption applications are quite common in family law matters, but they all have their own unique set of circumstances for consideration by the Court, especially in cases where a biological parent of the child does not consent to the application by another person.

The starting point for the requisites pertaining to adoption applications in Alberta is the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 (“CYFEA”).  Specifically, Section 70(1) of the CYFEA provides as follows:

If the Court is satisfied that

  1. The applicant is capable of assuming and willing to assume the responsibility of a parent toward the child, and
  2. It is in the best interests of the child that the child be adopted by the applicant,

the Court may order the adoption of the child by the applicant.

In applications where Section 70(1)(a) of the CYFEA is satisfied but a biological parent does not consent to the adoption of the child by the applicant, the question becomes: is it in the best interests of the child to be adopted by the applicant, and if so, is it necessary to dispense with a required person’s consent to same.

Matters to be considered within the concept of ‘what is in the best interests of the child’ are clearly outlined in Section 58.1 of the CYFEA.  It is then Section 68(4)(b) of the CYFEA that relates to the biological parent as a person who is required to provide consent and the Court’s authority to dispense with this consent in such a case, stating:

Notwithstanding sections 59 and 63, on considering an application under this Division, the Court may make an order dispensing with the consent of

 …

(b) A person who is required under section 59(2) to provide consent.

The analysis to determine whether it is in the best interests of a child to be adopted by another person where a required person objects to same, is outlined in the Supreme Court of Canada decision of R(AN) v. W(LJ), 1983, Canlii 27 SCC. In this SCC decision, the court emphasizes that it is the meaningful and positive influence of the parental tie in the life of the child, not in the life of the parent, that the court must be concerned about.

In an appreciation that is unique to family law, the SCC has recognized that sometimes the case will be that a required person’s  self-interest clouds their perception of what is best for their child, and sometimes what is best is for their child is for it to be brought up by someone else. In such cases where the consequences of denial clearly outweigh the benefits to the child, the Court may dispense with the required person’s consent and find the granting of the adoption application as in the child’s best interests.

2018-04-05T16:07:52-06:00March 20th, 2018|

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