Can an Adoption Order Be Challenged or Set Aside in Ontario?

Some people come to believe an adoption was obtained improperly. A parent may say they never properly consented, or someone may say they were never told about the application. If that is your situation, you will want to know whether the order can be undone.

The short answer is that Ontario law makes adoption orders very hard to reverse. This article explains what the law says about finality, the appeal route, the safeguards that apply before an order is made, and what to do if you are worried.

How final is an adoption order?

Under section 216(1) of the CYFSA, an adoption order is final and irrevocable, subject only to appeals under section 215. In practical terms, there is no general power for a court to cancel an adoption later because circumstances have changed or someone regrets a decision.

Once the order is made, the adopted child becomes the child of the adoptive parent, and each former parent stops being a parent. The exception is a stepparent adoption, where the former parent who is the spouse of the adoptive parent stays a legal parent.

The appeal route and the time limit

The route the Act recognizes is an appeal under section 215. The Act also says that no extension of the time to appeal will be granted. That means a missed deadline generally cannot be repaired, so anyone considering an appeal should get legal advice immediately and confirm the exact deadline that applies.

The appeal period also matters before an order is made. If a required consent was dispensed with by the court because a parent refused or could not be found, or if a late withdrawal of consent was allowed, no adoption order may be made until the appeal period has passed or any appeal has been decided.

Safeguards that apply before the order

Because the order is so hard to undo, the Act puts most protections earlier in the process. These are the points where problems are usually raised.

• Parental consent: an order for a child under 16 generally cannot be made without the written consent of every parent, and "parent" is defined widely for this purpose.
• Child in extended society care: a Director's written consent is needed instead of the parents' consent.
• Timing of consent: a parent cannot consent before the child is seven days old.
• Information and advice: before a parent consents, they must be told of the right to withdraw and get a chance to seek counselling and independent legal advice.
• Withdrawal: a person who consented may withdraw in writing within 21 days after giving it.
• The child's own consent: a person aged seven or older must give written consent after a chance to get counselling and independent legal advice, unless the court dispenses with it for emotional harm or inability to consent.
• Spouse consent: an applicant who is a spouse needs the written consent of the other spouse.

If a parent refuses consent or cannot be found, the court may dispense with the consent if that is in the child's best interests. The person must have received notice of the proposed adoption, or a reasonable effort to give notice must have been made.

Withdrawing consent late, and what does not undo an adoption

After the 21-day period, the court may still allow a consent to be withdrawn if that is in the child's best interests, and if the person withdrawing had custody, the child is returned to them. This is not available if the child has been placed for adoption and remains in the care of the person the child was placed with.

After an adoption, no court may make an order under Part VIII for access to the child by a birth parent or a member of a birth parent's family. A breach of an openness agreement also does not make the adoption invalid.

What to do next

If you think an adoption was obtained improperly, time is the main concern. Whether an appeal or another step is realistic depends on the facts, the stage of the case and the deadline that applies, so a family lawyer can confirm these for you.

• Find out right away whether an adoption order has actually been made, and its date.
• Collect any consent forms, notices, court papers and correspondence you received.
• Note when you gave or withdrew any consent, and whether it was in writing.
• Ask a lawyer to confirm the appeal deadline, since the time cannot be extended.
• If contact with the child is your concern, ask about openness agreements, which can be made before or after the adoption order, rather than assuming the adoption can be reversed.

Frequently asked questions