Adoption creates families and should be a joyful experience. In fact, it is one of the matters Justices enjoy having a part in. However, without proper support from a qualified lawyer, it can be overly long and frustrating and expensive.
Adoptions in Alberta are authorized under the Child, Youth and Family Enhancement Act of Alberta (CYFEA) and the Court of King’s Bench has exclusive jurisdiction to grant an adoption order.
There are five requirements you must meet before asking the Court for an adoption Order:
- The person applying for adoption must be an adult;
- That adult person is ordinarily residence in Alberta or was ordinarily resident in Alberta at the time the child was placed in their care;
- The child must be a Canadian citizen or a lawfully admitted permanent residence;
- If the child is subject to a PGO or PGA (see below), the appeal period or revocation period must be expired; and
- The period for revoking consent must be expired.
There are four different processes for adopting a child in Alberta.
A. Ministry of Children’s Services Adoptions
B. Private adoptions
C. Inter-country adoptions
D. Step-parent adoptions
The process is similar for all four with very specific differences. Ask a lawyer if you are unsure what type of adoption you are seeking.
The legislation also provides for Adult Adoptions.
Ministry of Children’s Services Adoptions
These adoptions, as well as inter-country (international) adoptions, are handled by the Ministry of Children’s Services for children who are subject to a PGO (Permanent Guardianship Order) or PGA (Permanent Guardianship Agreement). If this is the type of adoption you are seeking, the Ministry typically handles these matters and other lawyers are rarely involved.
If you are interested in this type of adoption, you should contact a Child and Family Services worker in your area.
A private adoption can occur in one of two ways: a child is placed into your care by a licensed adoption agency; or, by the child’s parents.
If a child has been placed in your care by the child’s parents, you must notify the Director of Children’s Services within 30 days of receiving the child. Likewise, the child’s parents must also notify the Director of Children’s Services within 30 days of giving the child to you. The Director is authorized to investigate any direct placements and provide evidence to the Court either in support of the adoption or against the adoption.
The law provides that the biological parents and the chosen adoptive parents have joint guardianship immediately upon the child’s guardians signing a written consent in the form prescribed by law.
There are licensed agencies in Alberta who assist parents with direct placements. If you have had a child placed in your care and you wish to apply to adopt that child, you should contact a licensed agency who will complete a home assessment report with respect to you and your home. You can also use the agency to complete the paperwork. Be sure to speak to them about costs and fees before they start the work.
You may also simply contact a lawyer who will then contact a home assessor to do the home assessment report. The lawyer will then complete the documents that include:
- Application for adoption
- Affidavit of an officer of the licensed adoption agency
- If applicable, a cultural connection plan in the case of Aboriginal children
- Affidavit of applicant (you)
- Consent of the child’s guardian(s) or an affidavit to support dispensing with their consent
- Consent of the child if they are over the age of 12 or an affidavit to support dispensing with their consent
- Medical history of the biological parents (6 months current)
- Criminal record check of the applicant (you)
- Vulnerable Sector Check (specific to adoptions)
- Home assessment report
- Affidavit of references
Once the package is ready, you provide the original and one copy of the package to the Adoptions Clerk at the Court of King’s Bench and you or your lawyer are contacted when the package has been reviewed with either a deficiency checklist or, if the package is approved, to select a hearing date. At that time, you pay the filing fee and the application is filed.
Depending on the Clerk’s workload, it can take several (8+) weeks for your package to be reviewed.
Again, be sure to talk to the lawyer about costs and fees before they start the work. The lawyer will ask for a Retainer that will include the cost of potential disbursements, such as the $250.00 Court Fee and the cost of serving the documents.
You may be the spouse or common law spouse of a parent who wishes you to adopt their child. The first step is for your spouse to sign a written consent in the form prescribed by law. You, as the step-parent, have interim, automatic joint guardianship with your spouse immediately upon them signing the written consent.
Your spouse has 10 days to change their mind and revoke their consent. Accordingly, you cannot file the Adoption package until the 10 days have elapsed.
The documents you must file with the Court include:
- An Affidavit setting out specific information relating to the child and to your relationship with the child’s parent
- The consent of the child’s guardian or an affidavit setting out your reasons for requesting that the Court dispense with the consent
- The consent of the child, if he or she is over the age of 12, or an affidavit setting out your reasons for requesting that the Court dispense with the child’s consent
- A medical history of the child’s biological parent
- Your criminal record check
- If you believe the child is aboriginal, a cultural connection plan
The Court may ask for a home assessment report.
For Direct Placements, the Adoption Package must be served on:
- All the guardians for the child
- The child, if he or she is over the age of 12
- The Minister of Family Services
- The biological father if he is not a guardian and the child is not subject to a PGO
- The person who consented to the adoption
For step-parent adoptions, the Adoption Package must be served on:
- The child’s guardian
- The child, if he or she is over the age of 12
- The Minister of Family Services
- The biological father or biological mother, if the child is not subject to a PGO, depending on whether they consented to the adoption proceeding without being served
Hearing or Desk Adoption
Adoptions may proceed as a Desk Adoption. Essentially, the adoption package is reviewed by a Justice of the Court of King’s Bench in their office and if they are satisfied with the documents, the Justice will sign the Order. A copy of the Order will be sent directly to the child’s ‘new’ parents and to the Director of Vital Statistics as well as to the Post Adoption Registry and (if the child has aboriginal status) to Indian Affairs.
If a Notice of Objection is filed, your adoption application requires a Hearing. The Hearing will take place in a closed Courtroom – not open to the public. If the Court is satisfied that you are capable and willing to assume the responsibility of being the child’s parent and the adoption is in the best interests of the child, the Court may grant an adoption Order. A copy of the Order will be sent directly to the child’s ‘new’ parents, to the Director of Vital Statistics and to the Alberta Post Adoption Registry. A copy is not sent to your lawyer.
If the Court does not grant the adoption, you must wait 2 years before applying again.
Typically, an uncontested adoption takes about 4 months.
The Director of Vital Statistics will then change the child’s birth certificate to show the adoptive parent(s) as the child’s parents. If you also applied to change the child’s name and the Justice granted that Order, the child’s name will be changed as well.
There are many reasons why you may wish to adopt an adult for whom you have stood in the place of a parent, including for estate planning or to formally legalize their relationship with you or their position in the family. The process is substantially different as only the Applicant and the Adult Adoptee need to consent. There is no provision for changing your name during the adoption. You can change your name under a separation application made pursuant to the provisions of the Vital Statistics Act. These generally proceed as Desk Adoptions.
Adoptions can be difficult and frustrating and require a solid knowledge of Court procedures and the law of adoption. You should hire a lawyer to assist you.
At Foster LLP, Jennifer Shaften handles our adoption clients. She is assisted by Dana Hicks who was a Court of King’s Bench Adoption Clerk for 14 years. Call us for a free half hour consultation.