This blog is a guest submission by a Russell Alexander Collaborative Family Lawyers, Senior Law Clerk, Lisa Clarke.
When people think of adoption, they are probably imagining scenarios which involve the adoption of a baby or young child. The thought of adopting a person over the age of 18 likely isn’t even going to cross your mind, and when the idea of adopting an adult is presented you may wonder if it’s even legal. You may also be wondering who these people are that want to adopt someone over the age of 18, and why? These are all questions I had myself at one time.
I was already well over 10 years into my career when I had my first file that involved a parent adopting an adult. It was a stepparent adoption. The “child” was older at the time their stepparent came into their life and adoption was not a consideration at that time. By the time the family had thought of the idea, the “child” was married and had small children of their own. The parents approached our office to first determine if it was even possible to adopt a person over the age of eighteen. They already considered themselves a family but wanted their relationship to be recognized by law. Of course, you don’t need a piece of paper to validate your family bond, but some people think the formality makes it feel more real. To say they were happy when we were able to advise them that yes, adult adoption is an option, would be an understatement.
By the time a person reaches age 18, most people think it is too late, and adoption is no longer a possibility because they are too old. Fortunately, this is not true! There is no age limit or limitation period on adoption.
Who Are These Adults Being Adopted?
The two most common situations where you will find an adult as the subject of adoption is with stepparent and family adoptions, and the adoption of a person who has aged out of extended society care (also referred to as “former foster child/ren”).
The purpose of a stepparent adoption will certainly always be clearer and more straightforward than the purpose of adopting a former foster child. A stepparent adoption includes free will and choice on the parents’ part and there is a clear intention of creating a permanent family bond, whereas foster placements are intended to be temporary in nature so the purpose of adoption will not be as obvious to the court.
The children who have aged out of the system that were in the care of a Children’s Aid Society (“CAS”) and entered Crown wardship prior to turning 18 are now adults and have no legal parents. Once the person is an adult, the CAS is typically not acting as guardian in the way it did prior to the adult aging out of the system. As a former foster child, once you turn 18 you are expected to survive on your own without any parental guidance, but many are not ready for this sudden loss of support. Of those adults, even fewer are fortunate to have built lasting relationships with their foster parents to the extent they seek to make their family status legal through the court process.
There are Requirements to Adopt an Adult. Other than Requiring an Adult.
The common requirements for adopting an adult, other than age, include connection, consent, and purpose. In adult adoption matters, the adult’s consent is central. Without it, there is no adoption. Other consents and notice requirements will vary depending on the facts. Generally, birth parents do not need to provide their consent and are only required notice of the adoption application.
Part of the adoption application process requires that you explain your relationship to the person you are seeking to adopt, because the court needs to believe there is a genuine purpose of the adoption. The details matter because it will also help the court understand why the adoption was not applied for when the person was a minor.
There needs to be a genuine parent-child style relationship, or a clear family reason for the adoption regardless of if it is a stepparent adoption or adoption of a child/ren who has aged out of extended society care.
Information relating to the adult’s relationship with the adoption applicant will include length of time the adoption applicant has known the person being adopted,
For former foster children, having a history of Crown wardship / extended society care helps support a clear, legitimate adoption purpose to the court and supports the position that the adoption is about permanence and not convenience. In these situations, it may help to have proof of the continued connection between the former foster child and family after aging out, including celebrating holidays, types of contact kept (phone, email, etc.), as well as proof of any emotional or financial support provided.
Why are Adults Being Adopted now vs as a Child?
Each person will have their own motive for applying for an adoption order for an adult. Perhaps it was a long-term stepparent situationship where the biological parent was still actively involved in the adult’s minor life (for example, there may be a court order that provides for support or benefits for the person that may be terminated once the adoption order is made).
Other common reasons people wait include:
- The adult could not be adopted as a minor because of difficulty in locating the other parent.
- Safety concerns surrounding contact with the birth family.
- Avoiding potential conflict with birth family (once the child is an adult and can provide their consent directly, the adoption process becomes much more straightforward).
- Validating identity and belonging.
- Reunification after troublesome childhood. Perhaps the stepparent relationship started a bit rocky but as adults they were able to rebuild the relationship.
- Cost and time.
What are Other Considerations I Might Not Think About When I Decided to Adopt (or get Adopted)?
There are other practical considerations to account for, regardless of whether you are adopting a child or adult, which are often overlooked when the initial discussions start. The result of an adoption order affects many areas of the relationship between parent and child, including:
- inheritance rights and estate planning
- parental rights (of the biological parent as well)
- name change
- Indigenous identity concerns
- immigration
Adult adoptions should be used carefully if the main goal is estate planning. While adoption affects inheritance rights, sometimes a properly drafted Will or beneficiary designation could achieve the same goal without all the other legal effects of adoption. It is important to remember that after adoption, the person’s legal tie to their birth family is automatically affected, which can change inheritance rights from the perspective of the birth family as well.
When Adopting an Adult Isn’t Ethical.
You should understand the court will likely scrutinize any applications that look like they are using the process to take advantage of the law and not actually seeking a parent-child relationship. For example, changing someone else’s parental rights in order to avoid legal responsibilities or court orders, immigration, or estate manipulation.
Adoption cannot be used as a tool to attempt to get around immigration rules or used to divert an inheritance away from another person who would otherwise inherit. Adoption also cannot be used for the sole purpose of qualifying for a benefit that you would not otherwise be entitled.
You’ve Convinced Me Adult Adoption is Legal, now what?
You are ready to start a court application! The court application consists of a package of forms and Affidavits, which is going to include background information, any consent or notice documents required, and a request for an adoption order. There are no court filing fees associated with an adoption application.
Typically adoption applications are made in writing but some may include a short court appearance depending on the jurisdiction and whether anything in the application is unclear. Applicants are generally given the choice to attend court in person to receive their Adoption Order.
I have personally had the honour of being in attendance when an adult adoption order was granted and it was one of the most joy-filled moments in my career. If you can attend in person for your adoption order, I highly recommend it.
This blog is a guest submission by a Russell Alexander Collaborative Family Lawyers, Senior Law Clerk, Lisa Clarke.
