Tag: adult adoption

20 Aug

Adoption of an Adult

Paul Emile Trudelle Estate & Trust Tags: , , , , 0 Comments

Adoption of an independent adult person by another is rare, but not unheard of. In Ontario, adoption of an adult is permitted under the Child, Youth and Family Services Act. See section 199(3). A court Order is required.

Case law has developed the test to be met before the court will make such an Order. A four-part test has evolved through the case law. Essentially, the criteria considered are:

  1. The adoption would create an actual (not just legal) change in the relationship between the applicant (adopter) and the proposed adoptee;
  2. Both parties are aware of the legal incidents of adoption, and intend those incidents to govern their new relationship;
  3. The adoption is motivated by the psychological and emotional need of the proposed adoptee for a new parent or for a parent to “fill the gap” in the parenting of the proposed adoptee;
  4. The relationship between the applicant and the proposed adoptee would be “enhanced and strengthened” by the adoption order.

These criteria are set out and applied in the leading case of Re Adoption of M.O.M., 2013 ONSC 3252.

Boiled down, the court will look closely at the bona fides of the proposed adoption. For example, an adoption of a boyfriend of a girlfriend to give the girlfriend access to a trust fund set up for the boyfriend’s children (as blogged on in our blog of February 3, 2013) would probably not be allowed.

The issue of adult adoption was considered in the recent case of Toronto Islands Community Trust Corporation v. McLaughlin, 2021 ONSC 206 (CanLII). There, McLaughlin “owned” a home on Toronto Islands. I put “owned” in quotes as the ownership and transfer of Toronto Island homes are strictly regulated under the Toronto Islands Residential Community Stewardship Act (“the Islands Act”). Owners are not allowed to transfer their Island homes, and they must be sold through a statutory trust. The sale must be to buyers who applied to be on a list of interested purchasers. The list contains up to 500 names. Names can be added, but only when space on the list permits. Since February 1993, only 66 of the 262 homes have been sold.

The sale price is regulated, and is substantially below market price.

One exception to the restrictions on transferring is that an owner can transfer or devise an Island residence to a spouse, child or joint owner. However, if consideration is to be paid, it is also regulated. Further, the transfer must be effected through the Trust.

Back to McLaughlin: McLaughlin had a close relationship with Whitfield. The relationship was strong and long-standing. The relationship was such that McLaughlin formally adopted Whitfeld in 2017. He later purported to transfer one-half interest in his Island home to Whitfeld. The Trust then moved to set aside the transfer, arguing that it was in breach of the terms of the Trust and the applicable legislation. McLaughlin agreed to set aside the transfer. However, the Trust then applied to the court for a declaration that the adoption bestowed no legal right to Mr. Whitfeld to obtain title to McLaughlin’s home.

The court considered at length the relationship between McLaughlin and Whitfeld. It concluded that the adoption was genuine and refused to make the declaration.

“The respondent Peter McLaughlin has acted as a father figure to the respondent Steven Whitfield for approximately 37 years.  This is not a case of two adults with little or no prior relationship engineering an adoption to defeat the purpose of transfer restrictions on Island homes.  This is an example of a genuine family relationship that stretches back decades and that is amply supported by contemporaneous documentation over the course of 37 years.  In those circumstances there is no reason to place any limitation on the definition of a child as including an adopted child under the Islands Act.” …

“Given the depth of evidence of a long-standing familial relationship between Mr. McLaughlin and Mr. Whitfield, I am inclined to apply the words of the Islands Act, literally and find that Mr. Whitfield is a child of Mr. McLaughlin for purposes of that Act.  It is highly unlikely that two other adults would engage in a 37-year relationship involving their immediate and extended family to engineer a transfer of an Island home to circumvent the restrictions contained in the Act.”

The court did not place significant weight on the fact of the prior adoption Order, and felt that it could assess the nature of the relationship afresh, noting that adult adoption Orders are usually unopposed, and noting that the legislative purposes of the Child, Youth and Family Services Act are different from the Islands Act.

The court in McLaughlin considered s. 217(2) of the Child, Youth and Family Services Act, which provides that “For all purposes of law, as of the date of making the adoption order, …the adopted child become the child of the adopting parent … .’ The court concluded that, as a matter of statutory interpretation, it was allowed to review the nature of the relationship between McLaughlin and Whitfeld in order to ensure that the underlying purpose of the Islands Act, being to establish that a fair scheme to make Island homes available to the public at large, was maintained.

Thank you for reading.

Paul Trudelle

09 Jan

Saskatchewan’s New Adoption Regulations

Ian Hull Estate & Trust, Estate Planning, General Interest, In the News, News & Events, Wills Tags: , , , , , , 0 Comments

On January 1, 2017, the Government of Saskatchewan implemented changes governing the release of adult adoptees birth registration, and access to birth registration information.

Old Regulation

In Saskatchewan, prior to the adoption of the new regulations, adult adoptees required the consent of a birth parent in order to find out their birth name, the name and location of the hospital where they were born, and the name of their biological parents. The requirement of consent was very burdensome on adult adoptees who had to go through the Saskatchewan Government, specifically the Post-Adoption Services branch, in order to track down their biological parents. Locating biological parents and obtaining consent would result in average wait times of approximately three years.

New Regulation

Those eligible to apply for the newly implemented Post-Adoption Services regulations, if the adoption was finalized in Saskatchewan, are:stocksnap_dca2ae8fa9

  • an adult adoptee (18+ years of age);
  • an adoptive parent of an adoptee who is under 18;
  • a birth parent of an adoptee;
  • the adult child of a deceased adult adoptee;
  • the adult child of a deceased birth parent whose child was placed for adoption; or
  • an extended family member of an adult adoptee or birth parent.

With the new regulation, adult adoptees no longer require consent from both parties to access birth registration information. The information is readily available to individuals who file a request. With the current regulation, the wait time for information is expected to be a few weeks.

From January 1, 2016 to January 1, 2017, both adoptees and birth parents had the option to veto the release of their birth registration information, specifically the biological names. There was no option to veto the name of the birth hospital or location. According to an article by CBC News, some 84 vetoes have so far been registered by birth parents, and “significantly fewer” by adult adoptees. Vetoes can only be placed on adoptions that occurred prior to January 1, 2017. Therefore, adoptions after January 1, 2017 must be subject to the new regulations.

The Government of Saskatchewan Post-Adoption Services website offers online forms requiring documentation such as a birth certificate, drivers licence and Order of Adoption. Further documentation will be required if the individual is an adult child of a deceased adult adoptee, or the adult child of a deceased birth parent whose child was placed for adoption. Furthermore, the application allows the searching party to specify their preferred method of contact.

From an estate planning perspective, it is interesting to consider that these revisions will, in certain circumstances, cause adoptees to be named as beneficiaries in the will of their biological parents.

Thanks for reading,

Ian M. Hull

Other Articles You May be Interested In

Adult Adoptions

The Issue of Parental Recognition

Estate Litigation for the Living

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