Can Birth Parents Change Their Mind About Adoption in Ontario?

Consenting to adoption is one of the hardest decisions a parent can make. Ontario law builds in protections so that consent is not rushed, and it gives a short window to change your mind.

This article explains the timing, what happens after the window closes and when an adoption becomes final. If you are in this situation now, speak with a lawyer promptly, because the deadlines are short.

When consent is needed

An adoption order for a child under 16, or a child 16 or older who has not withdrawn from parental control, cannot be made without the written consent of every parent. For this purpose, parent is defined widely. It includes a parent under the Children's Law Reform Act, an individual with lawful custody of the child, and an individual who has shown a settled intention within the prior 12 months to treat the child as a child of their family.

If the child is in extended society care, a Director's written consent is needed instead of the parents' consent.

Other people may have to consent too. An adoption order for a person aged seven or older needs that person's own written consent, given only after they have had a chance to get counselling and independent legal advice. The court may dispense with that consent if getting it would cause the person emotional harm, or if a developmental disability makes the person unable to consent. If the person applying to adopt is a spouse, the other spouse must also consent in writing. A consent given by someone under 18 is not valid unless the Children's Lawyer is satisfied that it is fully informed and reflects that person's true wishes.

Protections built in before consent

• A parent cannot give consent before the child is seven days old.
• Before a parent consents, the society or licensee must tell the parent about the right to withdraw consent.
• The parent must get a chance to seek counselling and independent legal advice.

If you are unsure, use that chance to speak with a lawyer who acts only for you.

The 21-day withdrawal period

A person who consented to an adoption may withdraw the consent in writing within 21 days after giving it. Keep a copy of what you send and note the date.

Once the consents are given and the 21-day period expires, the parents' rights and responsibilities pass to the society or licensee.

Because the window is short, the date you signed and the way you can prove you sent your withdrawal both matter. Keep every document and message together in one place. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

Changing your mind after 21 days

The court may allow a consent to be withdrawn after the 21-day period if that is in the child's interests. If the person withdrawing had custody, the child is returned to them.

This is limited. Late withdrawal is not available if the child has been placed for adoption and remains in the care of the person the child was placed with.

An adoption does not always mean an end to all contact. Open adoption does not always mean visits, but openness agreements can allow various kinds of contact between the child, the adoptive family and people from the child's past. An openness agreement may be made at any time before or after the adoption order, and failing to follow it does not affect the validity of the adoption order. After an adoption, no court may make an order under Part VIII of the Act for access to the child by a birth parent or a member of a birth parent's family.

When consent is not given, and what to do next

If a parent refuses consent or cannot be found, the court may dispense with a required consent, other than the child's or a Director's, if that is in the child's interests. The person must have received notice of the proposed adoption, or a reasonable effort to give notice must have been made. If that happens, no adoption order may be made until the appeal period has passed or any appeal has been decided.

No extension of the time to appeal will be granted, so act quickly.

On the date of the adoption order, the adopted child becomes the child of the adoptive parent, and each former parent stops being a parent. In a stepparent adoption, a former parent who is the spouse of the adoptive parent does not lose parent status.

• Write down the date you signed any consent.
• If you want to withdraw, do it in writing and keep a copy.
• Ask the society or licensee for written confirmation that they received it.
• Get independent legal advice right away.
• If you are the adoptive family, ask what the withdrawal period means for your timeline.

Frequently asked questions