Court Cases & Orders

Court Strikes Down Law Barring Platonic Parents from Adopting

Mother with child
Written by Russell Alexander / (905) 655-6335

Court Strikes Down Law Barring Platonic Parents from Adopting

In an important recent case called S.M. (Re), an Ontario court struck down as unconstitutional a legislative provision requiring adoptive parents to be “spouses”. The ruling opens the door for platonic friends to jointly adopt a child in certain scenarios.

The court was presented with a joint application for adoption put forward by two women, who had been “good friends” for 12 years but were not in a romantic relationship of any kind.  They wanted to adopt a child, S.H., who had been living with them for three years as part of a foster care arrangement since having been made a Crown ward only a few days after being born. The child’s half-sibling also lived in the loving home environment provided by the women, and they all considered themselves a family.

The glitch was that the Child, Youth and Family Services Act, 2017 (“CYFSA”) (and the former Child and Family Services Act, which it replaced) contained language to the effect that only “spouses” could jointly adopt a child that had been made a Crown ward.  The term “spouse” was specifically defined to include not only married partners, but also those in a “conjugal relationship outside of marriage”.  Since the women were only platonic friends and not spouses, this wording technically precluded them from jointly adopting the child.

The women asked the court to strike down the spousal requirement, on the basis that it was contrary to the Charter because it discriminated against them on the basis of marital status.

In readily doing so, the court noted that one of the public policy goals of the CYFSA was to try and promote an increase in the adoption rates of children who were Crown wards.  It cited studies and statistics showing that CYFSA-prompted changes were indeed making a difference.

The court then observed that the restrictive spousal requirement in the CYFSA was having the opposite effect: It reduced the pool of joint applicants who could adopt a Crown ward.   More to the point, it did so by drawing a needless distinction between applicants who were married or in a conjugal relationship, and those who were not.  The purported distinction was based on the women’s personal characteristics as two “single” individuals rather than spouses.

This, the court found, was in breach of the Charter, and could not be reasonably justified. The court added:

The applicants have chosen, in a free and democratic society, to live together as a family with emotional and financial interdependence.  They both sought to open their home to the most vulnerable in our society – children who are in need of protection.  The applicants applied for and were approved to be foster parents.  The subject child S.H. knows the applicants as her only parents.  The applicants, not unlike other long-term foster parents, now seek to adopt S.H., with the support and recommendation of the Society.  However, they cannot do so.

Why?  The answer:  their relationship is platonic; it is not conjugal.  They are not “spouses.”

While it may be argued that limiting joint applications to spouses will enhance the prospect of securing prospective adoptive parents who are in committed and stable relationships, it does not follow that those attributes would be absent when two individuals are in a long-term familial non-spousal relationship.

The absolute exclusion of non-spousal couples from joint adoption is arbitrary and is based on irrelevant personal characteristics, bereft of any merit-based assessment. 

The distinction created by the impugned legislation foments the stereotypic dogma that only traditional families with two “spouses” are able to apply for joint adoption.  I agree with the submission of the Attorney General of Ontario that the “prohibition also perpetuates and reinforces the pejorative view that families must match a specific model in order to be appropriate adoptive homes for children and youth.”

 The exclusion of the applicants is “at the front door.”  They cannot even apply.  …

The “front door” exclusion of non-spousal joint applicants without any opportunity for an assessment of their suitability as adoptive parents underscores the exclusion’s arbitrariness.

… The impugned legislation, rather than having an ameliorative effect, worsens the prospect for children to be adopted because it lessens the pool of prospective adoptive parents willing to make the crucial decision to adopt a child and give that child a loving home.

The court accordingly ruled that, under either the newer CYFSA or its predecessor Act, the legislative wording that required adoption applicants to be spouses was unconstitutional.  It “read down” or severed the law, by declaring the words “who are spouses of one another” of no force and effect in this context.

For the full text of the decision, see:

S.M. (Re), 2018

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.