Open Adoption and Openness Agreements in Ontario

Open adoption means different things to different families. Birth and adoptive families often make promises about letters, photos or visits, and then wonder whether those promises can be held to.

In Ontario there are two main tools: an openness order and an openness agreement. They work quite differently, and the difference matters if contact later breaks down.

What open adoption means

Open adoption does not always mean visits. Openness agreements can allow various kinds of contact between the child, the adoptive family, and people from the child's past.

Once an adoption order is made, 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. An openness order has to be sought before the adoption order is made, while an openness agreement can be made before or after it.

It helps to understand what an adoption order does. On the date of the order, 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 a former parent who is the spouse of the adoptive parent stays a legal parent. An adoption order is final and irrevocable, subject only to appeals.

Openness orders

For a child in extended society care with an adoption plan, the society may apply for an openness order before the adoption order is made. The court must be satisfied that the order is in the child's best interests and keeps up a beneficial and meaningful relationship.

• The society, the person who will have contact, the adoptive placement, and the child if 12 or older must all consent.
• A person who held an access order for a child in society care and gets notice of the plan to place the child for adoption may apply within 30 days after receiving the notice.

Openness discussions often happen while consents to the adoption are being given. A parent cannot consent to adoption before the child is seven days old. A person who consented may withdraw the consent in writing within 21 days after giving it. Once the consents are given and the 21 days expire, the parents' rights and responsibilities pass to the society or licensee. A court may allow a later withdrawal if that is in the child's best interests, but not if the child has been placed for adoption and remains in the care of the person the child was placed with.

Changing or ending an openness order

An adoptive parent, the adopted child, or a person allowed contact under an openness order may apply to vary or end it. The child and the contact person need leave of the court. The court may vary the order only if there has been a material change in circumstances.

Openness agreements and enforceability

An openness agreement may be made by an adoptive parent, or the person the child is placed with, and birth relatives or other listed people. It can be made at any time before or after the adoption order, and it may include a dispute resolution process.

The key limit is that failing to follow an openness agreement does not affect the validity of the adoption order. For private or stepparent adoptions, openness is usually by agreement rather than by order. How a court would enforce an agreement depends on the facts, so ask a lawyer before relying on one.

What to do next

Contact arrangements are personal, and what feels right at the start may need rethinking as a child grows. Taking time to think through what everyone expects can prevent misunderstandings later.

• Write down exactly what contact is being promised and how often.
• Find out whether the child is in extended society care, since that decides whether an order is possible.
• If you received notice of a plan to place a child and held an access order, note the 30-day deadline.
• Consider including a dispute resolution process in any agreement.
• Get legal advice before signing, since an agreement's breach does not undo the adoption.

Frequently asked questions