Birth Father Rights in an Ontario Adoption: Consent and Notice

You are an unmarried biological father and you have just learned, or suspect, that the child's mother is planning an adoption. You may be wondering whether anyone has to tell you, whether you can say no, and whether you can ask for custody of your child instead.

The answers depend on the facts of your situation, and court deadlines can move quickly. This article explains the parts of the Ontario process that are clear, points out where the answer is fact-specific, and sets out practical steps to take now.

Do you count as a parent for adoption purposes?

Who needs to consent in an adoption depends on who counts as a parent in law, and that is worth confirming with a lawyer. For an unmarried biological father, whether he is treated as a parent is not automatic and depends on the facts. A court can rule on that status, so the outcome varies from one situation to another.

Things that tend to matter in practice are the real-life relationship: whether you have acknowledged the child as yours, whether you have supported the child or the mother, and whether you intended to be part of the child's family. Whether those facts are enough in your case is something a family lawyer can assess.

Keep in mind that a person who has not signed a consent is not simply left out. The court process described below exists to deal with exactly that situation.

What happens when a parent has not consented

If the consent of a respondent who has not signed is needed, the applicant can bring a motion to dispense with that consent. In other words, the people arranging the adoption can ask a judge to move forward without your signature.

There is a court form for this stage. Form 8D.1, Application (Dispense with Parent's Consent to Adoption before Placement), is the form for dispensing with a parent's consent before placement. Court forms are updated from time to time, so the current version should be confirmed before anyone relies on it.

In a private domestic adoption, the ministry must approve the adoption plan before a child is placed. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

How to oppose: the Answer (Form 10)

A respondent who wants to oppose must serve and file an Answer (Form 10). If the respondent does not, the court may dispense with consent without further notice to them.

That second point is the one people most often miss. Ignoring court papers does not stop the process. It can allow the court to proceed without hearing from you at all.

• Read any papers you receive carefully and note every date on them.
• Do not ignore papers you have been served with, even if you plan to speak to the mother or the agency directly.
• Keep copies of anything you file and proof of when and how it was served.
• Get legal advice before you file, so your Answer says what you actually want the court to decide.

Can you seek custody or parenting time instead?

Many fathers ask whether they can claim custody to stop an adoption. How a father's own parenting claim interacts with a pending adoption depends on the facts and on the stage the adoption has reached, and it is a question for a lawyer.

It helps to know the vocabulary. Ontario parenting orders deal with decision-making responsibility, which covers significant decisions about health, education and religion, and with contact. In deciding, the court must act in the child's best interests and consider family violence and current living arrangements. A parenting order is enforceable, while a parenting plan is usually informal unless it is part of a separation agreement or court order.

Timing and the birth mother's consent

In a private domestic adoption, a birth parent has 21 days after consenting to change their mind, and the licensee then returns the child to them. That period applies to a parent who has consented. It does not replace the separate question of whether your own consent is needed.

What to do next

• Write down the dates: when you learned of the pregnancy or birth, and any contact with the mother, an agency or a court.
• Gather proof of your relationship with the child and the mother, such as messages, support payments and records of visits or involvement.
• Do not sign anything you do not fully understand, including a consent.
• Open and keep every document you receive from a court, agency or lawyer.
• Speak with an Ontario family lawyer promptly about your status, your options and any deadlines.

Frequently asked questions