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Family - Child - Children's Law Reform Act (CLRA). A.A.H. (Re) [parentage/adoption]
In A.A.H. (Re) (Ont Div Ct, 2025) the Ontario Divisional Court allowed an appeal, this brought against an adoption-related order that "dismissed the application, finding that the adoption of a child by a parent is logically impossible under the CYFSA".
Here the court considers whether a parent can adopt a child [under CYFSA s.199], an issue apparently brought about as a result of same-sex parents wanting to travel internationally with the child:[1] T.H. and A.B. are same sex spouses who married on November 16, 2013. Their child, A.A.H. was conceived using assistive reproductive techniques and was carried by A.B. until birth. The child is therefore biologically related to A.B. but not T.H. Both A.B. and T.H. are listed as the parents of A.A.H. on the child’s Statement of Live Birth. Both A.B. and T.H. have co-parented and raised their child together.
[2] T.H. applied for an adoption order pursuant to s. 199(2)(b) of the Child, Youth and Family Services Act, 2017 S.O. 2017, c.14 Sched.1. (“CYFSA”). The adoption was consented to by A.B.
[3] On March 24, 2025, Justice R. Restoule-Mallozi dismissed the application, finding that the adoption of a child by a parent is logically impossible under the CYFSA. Restoule-Mallozi J. found that given both T.H. and A.B. are the legal parents of A.A.H. named in the Certificate of Live Birth, they could not then also adopt their own child.
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[5] The appellant, T.H., appeals against this decision. This appeal is brought to the Divisional Court pursuant to s. 215(3.1) of the CYFSA.
[6] For the reasons that follow, I am satisfied that the appeal should be allowed and the adoption approved.
Analysis
[7] The appeal before me is on a question of law. The issue is whether the presiding judge applied an incorrect standard, a mischaracterization of a legal test, or a similar error in principle. The standard of review on appeal is that of correctness: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8,33 and 36.
[8] Sections 4 to 13 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) set out the rules of parentage in Ontario. In 2016, the CLRA was amended to reflect a broader definition of parentage. Section 8(1) provides that if the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child
[9] The rules of the adoption are set out in the CYFSA. Section 199(2)(b) of the CYFSA provides that an application may be made by a relative of a child, a parent of a child, or the spouse of a child’s parent, for an order for the adoption of a child. The power of a court to make an adoption order under this section is discretionary, taking into account the child’s best interests.
[10] In this case, no issue is taken with respect to the parenting by T.H. and A.B. They have co-parented A.A.H. since birth and are actively involved in the child’s life.
[11] T.H. and A.B. wish to protect their status as parents if they travel with A.A.H. outside of Canada. International recognition of adoption is governed primarily by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) which mandates that adoptions made in accordance with its provisions are recognized in other contracting states. The appellant submits that the adoption of A.A.H. is in the child’s best interest because it provides additional international protections in the event that the family travels to a signatory country. It may also provide additional protection if the family travels to a non-signatory country that nevertheless recognizes Canadian adoptions.
[12] The appellant submits that s. 199(2) of the CYFSA contemplates and permits the adoption of a child by a parent and therefore Restoule-Mallozi J. erred in law by refusing to order the adoption of A.A.H.
[13] I find that the wording of s. 199(2) is unclear with respect to whether a parent can adopt their own child. The provision simply permits a parent to “apply” for an order for the adoption of a child. It is unclear to me if this means the parent can apply for an order for the adoption of the child by another person or apply for an order for the adoption of the child by the parent. The legislation is silent in this regard.
[14] Where statutory provisions are subject to differing, but equally plausible interpretations, a court may interpret the legislation in a manner consistent with the Charter, and in particular the equality rights guaranteed by s. 15: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559 (S.C.C.) at para. 62; A.(A.) v. B.(B)., 2007 ONCA 2 at para. 25.
[15] I find that section 199(2) is subject to two equally plausible interpretations. One plausible interpretation is that a parent may apply for an adoption order for the adoption of their own child. The legislation does not explicitly prohibit this.
[16] In the circumstances of this case, I am satisfied that interpreting the legislation in a manner that permits a parent to adopt their own child is consistent with the values enshrined in the Charter, specifically s. 15, as it applies to same sex parents who may require international recognition as a parent, over and above the provincial recognition set out in the CLRA.
[17] There may be circumstances where the adoption of a child by their legal parent may be found to be superfluous. In those circumstances, a court may decline its discretion to approve the application. In those circumstances it may be that the parent is unable to satisfy the court that an adoption order is in the best interests of the child, because it would be unnecessary.
[18] However, in this case, the appellant has demonstrated a reasonable and supported basis on which adoption would be in the best interests of the child. If the family travel outside Canada, they face the risk that T.H.’s parentage, which is deemed by way of provincial legislation, may not be recognized in another country. Parental status through adoption is legally recognized by signatory countries to the Hague Convention. Adoptive parental status may also be recognized by non-signatory countries. I find that it is in A.A.H.’s best interests that both T.H. and A.B. be able to act within their role as the child’s parent when they travel. For example, if an urgent situation arose while abroad, T.H. may need to make important decisions as A.A.H.’s parent. An order for adoption provides further international protection for T.H.’s role as a parent.
[19] For these reasons, I find that Restoule-Mallozi J. erred in law in concluding that it is impossible for a parent to adopt their own child. I find that an interpretation of s. 199(2) that is consistent with Charter enshrined values permits a same sex parent to adopt their own child.
[20] I am also satisfied that it is in the best interests of A.A.H., that an adoption order issue pursuant to s. 199(2) of the CYFSA.
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