Does the Other Parent Have to Consent to a Stepparent Adoption in Ontario?

The most common worry in a stepparent adoption is the other biological parent. Must they agree? What if they say no, or no one has heard from them in years?

Ontario's Child, Youth and Family Services Act, 2017 (CYFSA) sets out who must consent and when a court can step in. This article explains the main rules in plain language. The details turn on your facts, so a lawyer can confirm how they apply to you.

Who must consent

An adoption order for a child under 16 cannot be made without the written consent of every parent. The same applies to a child 16 or older who has not withdrawn from parental control.

'Parent' has a broad meaning here. It includes a parent under the Children's Law Reform Act, a person with lawful custody of the child, and a person who has shown a settled intention within the prior 12 months to treat the child as a child of their family. So the people whose consent is needed may be more than the two birth parents.

• Every parent, as defined above.
• The child, if aged seven or older, after a chance to get counselling and independent legal advice.
• Your spouse, if you are applying as a spouse.
• A Director, instead of the parents, if the child is in extended society care.

Special rules for young people and adults

The court may dispense with the child's own consent if getting it would cause emotional harm, or if a developmental disability makes the child unable to consent. 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.

If the person being adopted is an adult, the rule requiring every parent's consent does not cover them. The adult's own written consent is required.

What if the other parent refuses or cannot be found

A refusal is not always the end of the road. 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 best interests.

There is a safeguard. The person must have received notice of the proposed adoption, or a reasonable effort to give notice must have been made. Courts expect real efforts to reach a missing parent, so keep a record of what you have tried.

If consent was dispensed with in this way, no adoption order may be made until the appeal period has passed or any appeal has been decided. That can add time to the process.

• Refusal and missing parents are different situations, but the court's test is the same: the child's best interests.
• The court looks at whether notice was given or reasonably attempted.
• Dispensing with consent does not apply to the child's own consent or a Director's consent.

Timing and withdrawing consent

A parent cannot give consent to an adoption before the child is seven days old. Where a society or licensee is involved, it must tell the parent about the right to withdraw consent, and the parent must get a chance to seek counselling and independent legal advice.

A person who consented may withdraw the consent in writing within 21 days after giving it. After that, the court may allow a late withdrawal if that is in the child's best interests, and if the person had custody, the child is returned to them. 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.

What to do next

• List everyone who might count as a parent, including people who fit the wider definition.
• Note the last known contact details of any parent you cannot reach and what you have done to find them.
• Keep copies of messages, letters and any court orders involving the child.
• Avoid pressuring anyone to sign. Consent should be informed and voluntary.
• Talk to a family lawyer before you ask for consent if you expect a refusal or cannot locate a parent.

Frequently asked questions