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