III. Adoption

D. Legislative Approaches in Other Jurisdictions

The following is a description of the state of the law in the other provinces and territories in Canada:

British Columbia

In 1996, B.C. amended its Adoption Act to permit same-sex adoption, either by the partner of a parent, or in respect of the adoption of an unrelated child. It did so in neutral terms. The Act simply says that "a child may be placed for adoption with one adult or two adults jointly" ⁽²³⁾ without specifying either gender or marital status.

Alberta

Alberta amended its Child Welfare Act in May of 1999 to allow for step-parent adoptions by the gay or lesbian partner of a biological parent ⁽²⁴⁾. This amendment was in response to a court challenge by two lesbian partners of biological mothers who argued that the legislation, which permitted only spouses to apply to adopt the child of their partner, was unconstitutional. Prior to the case being heard the Alberta legislature amended the Act to change spouse to step-parent which term the court found was meant to include homosexual step-parents. Therefore, in Alberta, homosexuals may adopt their partner's children on the same basis as heterosexuals.

The Alberta legislation is silent on the question of joint adoptions of wards of an agency or other unrelated children and therefore there is no legal impediment to adoption by two persons of the same sex.

Saskatchewan

In 1998, Saskatchewan passed legislation to permit an application for adoption by "married adults jointly, an unmarried adult, or any other person or persons that the court may allow, having regard to the best interests of the child" ⁽²⁵⁾. This wording is clearly broad enough to permit joint applications for adoption by same-sex couples. However, step-parent adoption was only possible with respect to the child of the applicant's "spouse" ⁽²⁶⁾. In 2001, Saskatchewan passed omnibus legislation which, inter alia, changed the definition of spouse in The Adoption Act to include "a person with whom the person is cohabiting as spouses" ⁽²⁷⁾ so that common-law partners could apply to adopt their partner's child. It was the government's intention by this amendment to include same-sex common-law couples as well as opposite-sex couples. They feel confident that a court would consider that same-sex couples can cohabit "as spouses" even though traditionally the label of "spouse" has only been available to heterosexual couples. This remains to be tested in court.

Ontario

Ontario amended its Child and Family Services Act to allow for same-sex adoptions as part of its omnibus legislation passed in response to the Supreme Court of Canada case of M. v. H. Persons who are permitted to jointly adopt or to adopt the children of their partner include married persons, common-law partners, and same-sex common-law partners. Ontario was criticized for introducing a three tier system of rights for couples because of the hierarchy of status that implies.

Quebec

The Quebec legislation is written in gender neutral terms, both in respect of step-parent adoption and in respect of agency adoptions and has been since 1982. The Act simply provides that "any person of full age may, alone or jointly with another person, adopt a child" ⁽²⁸⁾. Therefore, sexual orientation is not an issue in terms of adoption applications in that province.

Nova Scotia

The Nova Scotia legislation permits persons to adopt individually and the issue of sexual orientation has no effect on the application. However, the legislation does not allow common-law couples, either same-sex or opposite-sex, to adopt jointly or to apply to adopt the biological child of their partner. In the recent case of (Birth Registration No. 1999-02-004200) (Re) ⁽²⁹⁾, one member of a lesbian couple sought to adopt the biological child of her partner and the court concluded that the provisions of the Nova Scotia Adoption Act which prevented same-sex couples from applying to adopt were unconstitutional. The result has been that in Nova Scotia, both same and opposite-sex common-law couples are now permitted to adopt a child jointly as a couple and are also permitted to adopt the child of their partner.

New Brunswick

Their Child and Family Services and Family Relations Act does not permit a gay or lesbian partner to adopt the child of his or her partner nor does it permit a gay or lesbian couple to adopt jointly.

P.E.I.

Their legislation does not permit a gay or lesbian partner to adopt the child of his or her partner nor does it permit a gay or lesbian couple to adopt jointly.

Newfoundland

Their Adoption Act was amended in 1999 to permit both stranger and step-parent adoptions by same-sex couples. It provides that "one adult alone or two adults jointly may apply to a court to adopt a child under this Act", and that "one adult may apply to a court to jointly become a parent of a child with a birth parent of that child" ⁽³⁰⁾. Although the Act was passed and given Royal Assent on December 14, 1999, it was subject to proclamation which will not likely come into force until approximately Apri1, 2002.

Northwest Territories

Their legislation does not permit a gay or lesbian partner to adopt the child of his or her partner nor does it permit a gay or lesbian couple to adopt jointly.

Yukon and Nunuvut

In summary, it is clear that the majority of the provinces have changed their adoption law and/or practice to include persons in same-sex common-law relationships.


Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 *Legislative Approaches in Other Jurisdictions*

III c) The Impact of the Charter of Rights	III e) Analysis

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report