Family Law Rules: Rule 34- Adoption

CFSA DEFINITIONS APPLY

34. (1) The definitions in the Child and Family Services Act apply to this rule and, in particular,
“Director” means a Director within the meaning of the Act. O. Reg. 114/99, r. 34 (1).

MEANING OF “ACT”

(2) In this rule,
“Act” means the Child and Family Services Act. O. Reg. 114/99, r. 34 (2).

USE OF INITIALS IN DOCUMENTS

(2.1) An applicant or respondent may be referred to by only the first letter of his or her surname in any document in the case, except that,

(a) the applicant’s full names shall appear in the adoption order; and

(b) the child’s full names shall appear in the adoption order, unless the court orders that the child’s first name and the first letter of his or her surname be used. O. Reg. 337/02, s. 3 (1).

CERTIFIED COPY OF ORDER FROM OUTSIDE ONTARIO

(3) When this rule requires a copy of an order to be filed and the order in question was made outside Ontario, it shall be a copy that is certified by an official of the court or other authority that made it. O. Reg. 114/99, r. 34 (3).

MATERIAL TO BE FILED WITH ADOPTION APPLICATIONS

(4) The following shall be filed with every application for an adoption:

1. A certified copy of the statement of live birth of the child, or an equivalent that satisfies the court.

2. If required, the child’s consent to adoption (Form 34) or a notice of motion and supporting affidavit for an order under subsection 137 (9) of the Act dispensing with the child’s consent.

3. If the child is not a Crown ward, an affidavit of parentage (Form 34A) or any other evidence about parentage that the court requires from the child’s parent or a person named by the court.

4. If the applicant has a spouse who has not joined in the application, a consent to the child’s adoption by the spouse (Form 34B).

5. If required by the Act or by an order, a Director’s or local director’s statement on adoption (Form 34C) under subsection 149 (1) or (6) of the Act.

6. An affidavit signed by the applicant (Form 34D) that includes details about the applicant’s education, employment, health, background and ability to support and care for the child, a history of the relationship between the parent and the child and any other evidence relating to the best interests of the child, and states whether the child is an Indian or a native person. O. Reg. 114/99, r. 34 (4); O. Reg. 337/02, s. 3 (2).

REPORT OF CHILD’S ADJUSTMENT

(5) A report under subsection 149 (5) or (6) of the Act of the child’s adjustment in the applicant’s home shall also be filed with the application if the child is under 16 years of age, or is 16 years of age or older but has not withdrawn from parental control and has not married. O. Reg. 114/99, r. 34 (5).

ADDITIONAL MATERIAL — CROWN WARD

(6) If the child is a Crown ward, the following shall also be filed with the application:

1. A Director’s consent to adoption (Form 34E).

2. A copy of any order under subsection 58 (1) of the Act ending access to the child.

3. A copy of the order of Crown wardship.

4. Proof of service of the orders referred to in paragraphs 2 and 3, or a copy of any order dispensing with service.

5. An affidavit, signed by a person delegated by the local director of the children’s aid society that has placed the child for adoption, stating that there is no appeal in progress from an order referred to in paragraph 2 or 3, or that the appeal period has expired without an appeal being filed, or that an appeal was filed but has been withdrawn or finally dismissed.

6. If the child is an Indian or native person, proof of 30 days written notice to the child’s band or native community of the intention to place the child for adoption. O. Reg. 114/99, r. 34 (6); O. Reg. 337/02, s. 3 (3).

ADDITIONAL MATERIAL — CHILD NOT CROWN WARD

(7) If the child is not a Crown ward and is placed for adoption by a licensee or children’s aid society, the following shall also be filed with the application:

1. A copy of any custody or access order that is in force and is known to the person placing the child, or to an applicant.

2. Revoked: O. Reg. 337/02, s. 3 (4).

3. A consent to adoption (Form 34F) under section 137 of the Act from every parent, other than the applicant, of whom the person placing the child or an applicant is aware. An order under section 138 of the Act dispensing with a parent’s consent may be filed instead of the consent.

4. An affidavit (Form 34G) signed by the licensee or by an authorized employee of the children’s aid society (depending on who is placing the child).

5. If the child is placed by a licensee, a copy of the licensee’s licence to make the placement at the time of placing the child for adoption.

6. If the child is an Indian or native person, proof of 30 days written notice to the child’s band or native community of the intention to place the child for adoption. O. Reg. 114/99, r. 34 (7); O. Reg. 337/02, s. 3 (4-6).

ADDITIONAL MATERIAL — RELATIVE OR STEP-PARENT

(8) If the applicant is the child’s relative or the spouse of the child’s parent, an affidavit from each applicant (Form 34H) shall also be filed with the application. O. Reg. 114/99, r. 34 (8).

APPLICATION BY STEP-PARENT OR RELATIVE

(9) An application by a relative of the child or the spouse of the child’s parent,

(a) shall not be commenced until the 21-day period referred to in subsection 137 (8) of the Act has expired; and

(b) shall be accompanied by the applicant’s affidavit confirming that he or she did not receive a withdrawal of consent during the 21-day period. O. Reg. 337/02, s. 3 (7).

STEP-PARENT ADOPTION, PARENT’S CONSENT

(10) An application by the spouse of the child’s parent shall be accompanied by the parent’s consent (Form 34I). O. Reg. 337/02, s. 3 (7).

INDEPENDENT LEGAL ADVICE, CHILD’S CONSENT

(11) The consent of a child to be adopted (Form 34) shall be witnessed by a representative of the Children’s Lawyer, who shall complete the affidavit of execution and independent legal advice contained in the form. O. Reg. 337/02, s. 3 (7).

INDEPENDENT LEGAL ADVICE, CONSENT OF PARENT UNDER 18

(11.1) The consent of a person under the age of 18 years who is a parent of the child to be adopted (Form 34F) shall be witnessed by a representative of the Children’s Lawyer, who shall complete an affidavit of execution and independent legal advice (Form 34J). O. Reg. 337/02, s. 3 (7).

INDEPENDENT LEGAL ADVICE, ADULT PARENT’S CONSENT

(12) The consent of an adult parent of the child to be adopted shall be witnessed by an independent lawyer, who shall complete the affidavit of execution and independent legal advice. O. Reg. 114/99, r. 34 (12); O. Reg. 337/02, s. 3 (8).

COPY OF CONSENT FOR PERSON SIGNING

(13) A person who signs a consent to an adoption shall be given a copy of the consent and of the affidavit of execution and independent legal advice. O. Reg. 114/99, r. 34 (13).

WITHDRAWAL OF CONSENT BY PARENT

(13.1) A parent who has given consent to an adoption under subsection 137 (2) of the Act may withdraw the consent under subsection 137 (8) of the Act in accordance with the following:

1. If the child is placed for adoption by a children’s aid society, the parent who wishes to withdraw the consent shall ensure that the children’s aid society receives the written withdrawal within 21 days after the consent was given.

2. If the child is placed for adoption by a licensee, the parent who wishes to withdraw the consent shall ensure that the licensee receives the written withdrawal within 21 days after the consent was given.

3. If a relative of the child or a spouse of a parent proposes to apply to adopt the child, the parent who wishes to withdraw the consent shall ensure that the relative or spouse receives the written withdrawal within 21 days after the consent was given. O. Reg. 337/02, s. 3 (9).

WITHDRAWAL OF CONSENT BY CHILD AGED SEVEN OR OLDER

(13.2) A child who has given consent to an adoption under subsection 137 (6) of the Act may withdraw the consent under subsection 137 (8) of the Act in accordance with the following:

1. The withdrawal shall be signed within 21 days after the consent was given, and witnessed by the person who witnessed the consent under subrule (11) or by another representative of the Children’s Lawyer.

2. The person who witnesses the withdrawal shall give the original withdrawal document to the child and promptly serve a copy on the children’s aid society, licensee, relative or spouse, as the case may be, by regular service. O. Reg. 337/02, s. 3 (9).

MOTION TO WITHDRAW CONSENT

(14) Despite subrule 5 (4) (place for steps other than enforcement), a motion to withdraw a consent to an adoption under subsection 139 (1) of the Act shall be made in,

(a) the municipality where the person who gave the consent lives; or

(b) in any other place that the court decides. O. Reg. 114/99, r. 34 (14); O. Reg. 337/02, s. 3 (10).

CLERK TO CHECK ADOPTION APPLICATION

(15) Before the application is presented to a judge, the clerk shall,

(a) review the application and other documents filed to see whether they are in order; and

(b) prepare a certificate (Form 34K). O. Reg. 114/99, r. 34 (15).

DISPENSING WITH CONSENT BEFORE PLACEMENT

(16) In an application to dispense with a parent’s consent before placement for adoption,

(a) the applicant may be the licensee, a parent, the children’s aid society or the person who wants to adopt;

(b) the respondent is the person who has not given consent;

(c) if an order that service is not required is sought, the request shall be made in the application and not by motion;

(d) if the application is being served, the applicant shall serve and file with it an affidavit (Form 14A) setting out the facts of the case;

(e) if the application is not being served, the applicant shall file with it an affidavit (Form 14A) setting out the facts of the case, and the clerk shall send the case to a judge for a decision on the basis of affidavit evidence. O. Reg. 337/02, s. 3 (11).

FORMS FOR OPENNESS APPLICATIONS

(17) In a case about an openness order under Part VII of the Act,

(a) an application for an openness order shall be in Form 34L;

(b) a consent to an openness order shall be in Form 34M;

(c) an application to change or terminate an openness order shall be in Form 34N; and

(d) an answer to an application to change or terminate an openness order shall be in Form 33B.2. O. Reg. 519/06, s. 6.

(18) Spent: O. Reg. 337/02, s. 3 (11).