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You’ve Decided You Want To Adopt Your Spouse’s Child… Now What?

Leigh Sherry

Lawyer

Tel:       403.984.0458
Email:  lsherry@vogel-llp.ca

Once you and your family have made the important decision that you are ready to adopt your stepchild, what comes next?   If you are considering adopting your spouse’s child, you will no doubt have many questions about the process and criteria.  How will you know if the Court will grant your application to adopt your stepchild?  Do you need the consent from both biological parents or just your spouse who has primary care of the child?  What is the definition of a stepparent, and how do you know if you even are one?

Stepparent adoption comes with significant legal, emotional and financial implications, and the overriding consideration in any adoption is the best interests of the child.  Knowing what factors a Court will consider, and what requirements you must prove to the Court, can help you decide whether this is the right choice for your family.

Although the term stepparent is not defined in the legislation, the Courts in Alberta identify it by examining whether there is a relationship present between the adult and the child (not just between the adult and the child’s parent); and whether the adult has stood in the place of another parent, which lawyers refer to as in loco parentis, towards the child (AB (Re), 2015 ABQB 641 [AB], para 7).

If you are considering adopting your stepchild, you should be aware that you will need to serve your court application on both biological parents, even if one biological parent is no longer guardian or does not have a relationship with the child.  Each biological parent and guardian is allowed to object to the adoption.  Unless the Court orders otherwise, you will only be allowed to adopt your stepchild if all the guardians consent, and the child consents as well (in cases where the child is over 12 years old).

The Court must be satisfied that two criteria have been met before granting an adoption:  1) that you are capable and willing to assume the responsibility of a parent, and 2) that the proposed adoption is in the best interests of the child.

In Alberta, The Child, Youth and Family Enhancement Act, RSA 2000, c C-12 [CYFEA] specifies the factors that the Court of Queen’s Bench must consider prior to granting an adoption.  The factors listed in s. 58.1 of the CYFEA include the importance of a positive relationship with the parent, the benefits to the child of stability and continuity of care and relationships, the child’s mental, physical, emotional and spiritual needs, the child’s views and wishes, and the benefits to the child of maintaining the child’s heritage, if possible.

Not all stepparent adoptions will be approved even if you have the primary caregiver’s consent to adopt, as the final determination is not for the parent to decide; it remains with the Court.  In the case, HRW (Re), 2017 ABQB 601 [HRW], even though the applicant had the consent of the primary caregiver, the Court denied the stepfather’s application to dispense with the consent of the biological father.  The Court reasoned that the biological father’s relationship with the child, although limited, was not “harmful” to the child (para 56).  The Court also considered the applicant’s reasons to adopt the child, and disapproved of the mother and stepfather’s motivation, finding that they were “seeking to completely sever” the child’s relationship with her biological father and that they had created an “all or nothing approach” (para 74).  Thus, it is worthwhile proposing a plan in which the biological parent (whose legal connection to the child would be terminated) could still have a connection to the child, as long as it is consistent with the best interests of the child.

The Court will be interested in knowing your motivation to adopt.  If your motivation is to sever a non-harmful relationship, or to make a huge change in the child’s life immediately after the adoption (such as moving overseas) which may have the impact of severing the other parent’s relationship to the child, the adoption application may not be successful.

The Court will also want to know about your relationship with the primary caregiver.  If your spousal relationship is new or unstable, that may be a factor that will go against your application.  In denying the stepfather’s request in HRW, the Court noted that the parties’ relationship was quite new and not formalized by marriage (para 73).

In a 2018 case, CM (Re), 2018 ABQB 605 [CM], the Court granted the stepparent’s application to adopt his stepchild.  The Court noted that the biological father had very little involvement in the child’s life, and that the stepfather was the “only one father” the child knew (para 34).  The Court believed it was in the child’s best interest to affirm this connection, as well as provide stability for the child by ensuring that if anything happens to the mother, the child would remain with the stepfather (para 34).  The Court also felt satisfied to grant the adoption as there was a commitment from the parents that the biological father’s family would continue to have a relationship with the child, thus, any genetic inquires the child may have later on, could still be accessed (para 35).

The non-consenting parent’s past conduct is also relevant.  If the biological parent’s contact with the child has been so minimal such that they have effectively given up their parental rights, the Court will consider that factor in its analysis.  In S(RG) v E(J), 2017 ABQB 65, the Court granted the stepparent adoption. At para 16, the Court summarized the test as: “Essentially, “on balance, would the child gain, and not lose by being permanently cut off from the non-consenting parent?” M. (J.J.) v. L. (S.D.), para 21.”  The Court then determined that the biological father’s contact with the child was so sporadic and infrequent that he “in effect abdicated or abrogated his parental rights” (para 23).  The Court decided that a denial of the adoption would not protect the biological father-child relationship because there was not one to protect or uphold, and that the child “gains much more from the adoption than he does by being cut-off” from the biological father (para 26).

Lastly, in another successful stepparent adoption case, AB (Re), 2015 ABQB 641, the Court explained that the adoption would provide “practical benefits in relation to managing the day-to-day primary care of the child” (para 40).  The Court also noted that, from the child’s perspective, the adoption would serve emotional and psychological needs by having his stepfather commit to a permanent relationship with the child (para 40).  The Child was 15 years old at the time of the application and wanted the adoption to proceed. 

These contested stepparent adoption cases illustrate that the best interest of the child is the paramount consideration in any adoption.  The Court will weigh many factors against each other, including the child’s relationship with the non-consenting biological parent, the length and history and stability of the child’s relationship with the stepparent, the child’s input (where appropriate), the motivation for wanting to adopt, and the practical benefits or disadvantages to the adoption.

Adopting your stepchild can bring legal permanence to a positive and loving parent-child relationship, and if all legal requirements are met, and it is in the best interests of the child, then the Court will likely be on board.

2020-06-12T12:16:29-06:00June 15th, 2020|

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