Legal Guardianship vs Adoption for a Child in Ontario

Grandparents, relatives and family friends often end up raising a child. The question then becomes whether to seek adoption or a court order that gives you decision-making authority without changing who the child's parents are.

This article compares the two in plain terms: legal status, permanence, birth family contact, money and inheritance. The right choice depends on the child's circumstances and the parents' positions, so a family lawyer can help you weigh it.

Two different legal tools

A person who is not a parent, including a grandparent, relative or family friend, may apply to court for a parenting order on decision-making responsibility, or for a contact order. The application must include an affidavit setting out the proposed plan for the child and any involvement in family or criminal proceedings.

Adoption is different. 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, except that a former parent who is the spouse of the adoptive parent keeps their parent status, as happens in a stepparent adoption. People often use the word guardianship loosely for the first kind of order, so check exactly what an order says before you rely on it.

Side-by-side comparison

Process and requirements

For a non-parent seeking decision-making responsibility, you must file a recent police records check. You must also request a report from each relevant children's aid society, which must respond within 30 days. The clerk also provides information on any family proceedings involving the child or the non-parent.

The court decides these applications only on the child's interests. It gives primary consideration to the child's physical, emotional and psychological safety, security and well-being, and weighs factors including relationships with grandparents and others, the child's views, heritage, and family violence.

An adoption of a child under 16 cannot be ordered without the written consent of every parent, and 'parent' is defined widely for this purpose. It includes a parent under the Children's Law Reform Act, someone with lawful custody of the child, and someone who has shown a settled intention within the prior 12 months to treat the child as a child of their family. When the child is in extended society care, a Director's written consent is needed instead of the parents' consent. If a parent refuses or cannot be found, the court may dispense with the consent if that is in the child's interests and notice was given or reasonably attempted. Adoptive parents must be Ontario residents and can be a couple or a single person.

Money, support and inheritance

An adult caring for a child who is temporarily in their care, with no legal obligation to support the child, may get Temporary Care Assistance of up to $274 a month for the first child and $224 for each additional child, or $440 and $326 north of the 50th parallel without year-round road access. The caregiver's own finances are not assessed.

It is not available if the caregiver is paid for care under the CYFSA, or has a legal obligation to support the child, such as an adoptive parent or someone who has shown a settled intention to treat the child as their own. Where a legal custody order under s. 116 of the CYFSA applies, the child is generally not eligible. Benefit amounts can change, so confirm current figures.

Inheritance and benefits depend on wills, the type of order and the specific rules of each plan or program. Because adoption changes who a child's parents are, it can affect these questions in ways a non-parent order may not. Ask a lawyer to confirm the details for your family.

Choosing and next steps

• Adoption suits families who want permanent parental status and where the legal steps, including consents, can be met.
• A non-parent order may suit situations where the parents remain involved or consent is not realistic, though the right fit depends on the facts.
• Consider the child's age: someone seven or older must give their own written consent to an adoption, although the court may dispense with it if getting it would cause emotional harm or a developmental disability makes the person unable to consent.

• Write down how long the child has lived with you and who has been involved in their care.
• Collect any existing court orders or agreements.
• Identify each person who may be a parent for consent purposes.
• Check whether you receive, or may be eligible for, any support payments.
• Book a consultation with a family lawyer before filing anything.

Frequently asked questions