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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss the adoption of a child by a step-parent in Alberta.
For same-sex parents who are using a donor known to them rather than an anonymous donor, a Parenting Agreement is a good idea if the donor is to have a specific role in the child’s life. This also applies to a heterosexual mother who does not put the name of the known donor on the birth certificate. The Parenting Agreement may provide for support payments for the child by agreement. Generally a known donor will have more legal rights to a child than an anonymous donor. If the child has been conceived by alternative insemination the donor will have no legal rights to the child. It is best to consult a lawyer in this situation.
A step-parent who wishes to adopt a child of their spouse must stand in the role of parent to the child. They must be willing to assume the responsibility of being a parent towards the child. As an adoptive parent, they will assume the rights, duties and responsibilities of the child. The Court must be satisfied that the adopting parent is capable of becoming a parent to the child and that it is in the best interests of the child to be adopted. All adopting parents must pass this test. For example, same-sex step-parents may adopt a child of their partner if the Court is satisfied of the above.
Consents to the adoption of the child are required by the birth parents, the guardians and any child over the age of 12 years. Birth parent consents to the adoption may be completed by a lawyer or Ministry Social Worker. If there is a refusal to give consent, the Court may order consent be dispensed with in some circumstances. The situation must be serious for the Court to dispense with the consent of the parent or guardian. For example, it is serious where the biological father or mother has abandoned the children or there are situations of physical or sexual abuse towards the child, there may be a no Contact Order with the child by the parent or no financial support. In these situations, the Court may dispense with the requirement for consent. If the child is 12 years or older, the decision by the Court will be decided on a case-by-case basis on whether to dispense of the consent of that child.
To start adoption proceedings, the parent and the adopting parent must file an application in the Court of Queen’s Bench. An Affidavit providing background information must be included. The Affidavit should include the names of the child’s parents, date and place of birth and whether the child is male or female. The Affidavit should also include the name of the parent who has lawful custody of the child, the step-parent’s relationship to the person who has lawful custody and any terms of an Agreement or Order respecting access, custody and contact time with the child.
The consents of the parents or guardians and any child over the age of 12 years must also be included with the application. If you are unable to provide consents, provide an Affidavit giving the reasons why the Court is being asked to dispense with these consents. You may also ask the Court to change the child’s name as required. The hearing date for the adoption application is then set by the Clerk of the Court.
The documents for the adoption application must be served on the Minister, all guardians other than the applicant parent involved in the application, the biological father even though he may not be a guardian, and the child 12 years of age and over. You may ask the Court before the date scheduled for the hearing to dispense with service of the documents. If you wait until the day of the hearing and the Court refuses to dispense with the consent or the service of the documents, the hearing will be adjourned so that you obtain the consents and the adoption will be delayed.
On the hearing date, the Court will first ensure that the necessary consents are obtained or dispensed with by the Court and that proper notice of the hearing has been given. The Court will then consider the adoption matter. The Court must be satisfied that the proposed adopting parent is capable and willing to assume the responsibility of parenting the children and that the adoption is in the best interests of the child. Sometimes the Court may ask for a home assessment report to be completed by a qualified Social Worker or Psychologist. The home assessment will involve a home visit with the parent, the proposed adopting parent, and the child.
Once the Court is satisfied that the adoption is in the best interests of the child, the Court will issue an Order for the adoption, and for the name change as requested. The adopting parent is then considered a legal parent of the child in the same way as if the child was born to them.
The child adopted by the step-parent continues to be the child of the parent who has lawful custody. The parent or spouse of the adoptive step-parent does not stop being the parent and guardian of the child. However, the other biological parent and family are considered legal strangers to the child after the adoption. Once the adoption is concluded, the Department of Vital Statistics issues a new birth certificate for the child. The adopting parent is recorded on the birth certificate as the mother or father of the child. For example, if the step-father adopts the child, the step-father is recorded as the father of the child on the new birth certificate and the biological father has no rights to the child, as he is now a legal stranger. If there are 2 mothers, the names on the birth certificate will be recorded as parent and parent.