Can I adopt my partner’s child?

Jill's friend, Joyce, has been with her spouse Robert for over 12 years now.  Robert has a daughter, Jenny, who is 14 years old.  Joyce is the only mother that Jenny has ever known, since her own mother (Robert’s 1st wife) passed away when Jenny was only a year old.  Joyce wishes to formalize her role as Jenny’s parent and is thinking about adopting her, though she is uncertain as to whether it is possible (after all, Jenny has a birth mother) and if so, what the steps are. 

In Ontario, it is common for new partner to adopt the child(ren) of their new partners, born from a prior relationship.  It is most common when the other parent has passed or is completely absent from the child’s life.  This process is called an “adoption by a relative or stepparent” and has its own unique legal process.  In fact, it is the only legal means through which a partner can become the true legal parent of his or her partner’s child. 

To qualify for the relative adoption process, the adoptive parent must either be:

• a step-parent

• a grandparent

• an aunt or an uncle

• a great-aunt or a great-uncle

Further, the relative adoption process is only available when the adoptive parents are residents of Ontario and the child resides in Canada.

What is different and often appealing about the adoption by a relative is that it does not affect your existing relationship with your child. It simply causes your partner to become a legal parent of the child as well. If alive, the consent of the other birth parent will be required although a judge may allow the adoption without the parent's consent in some exceptional circumstances (i.e. if the parent is dead, cannot be located or for some other reason if the best interests of the child would be promoted by waiving consent of the other parent).  It is also interesting to note that a child who is 7 years of age or more must consent to the adoption for the adoption to proceed.

Once the adoption order is made, the adoptive parent has deemed to be the parent of the children and is granted the same rights and obligations as any other parent in Canada or the world. 

School is about to start! Can I move with the children in a few weeks?

Jill has a new spouse who lives in Kingston. They have been in a long distance relationship for two years and Jill is ready to move on with her life and move in with him.  Jill has had primary custody of the children since the separation (Jack has them every other weekend as well as every Tuesday and Thursday, from after school to 8 p.m.), and feels that since she has all the parenting responsibilities, she should be able to take the children with her.    After all, Kingston is only a two hour drive from Ottawa, and Jack has not been consistent in taking the children with him every Tuesdays and Thursdays due to various work commitments.  However, when Jack heard that Jill wanted to move the children to Kingston, he went through the roof! He told her that he would not consent to the move and that he would take whatever action is necessary to stop her. Time is pressing, as Jill has committed herself to the purchase of a home in Kingston and school starts in September. However, she knows from speaking with a friend that it can take months, if not years, for a family case to be heard by the court and a final decision made by a judge. She wonders if there is a quicker way to proceed…

The court process is usually long and issues such as the relocation of children away from one parent (called a “mobility case”) are very hard to decide fairly without a full hearing by way of a trial. However, in situations of urgency like Jack and Jill’s, the court can be asked to make an interim order allowing the children to move, before a trial is held.  The proceeding is called a “motion” and the mobility issue may be determined by a judge based on written evidence only (affidavits), if the circumstances justify it.

 

In the context of an interim mobility motion, the judge will try to determine what is in the best interests of the children, from the perspective of the children (and not the parents) The relocating parent will have to establish that there is “compelling circumstances” justifying the move on a temporary basis, and that there is a “strong probability” that he/she will be successful at trial. However, when the evidence provided by the parties does not show a clear trial outcome in favour of one parent,  it is very unlikely that the motion judge will authorize the move on an interim basis.  As such, moving with the children away from one parent is not a last minute decision to be made.  It is important to plan ahead to avoid heated and costly court battles!