NON-BIOLOGICAL PARENTS

Biological Parents

In a response to the use of reproductive technology and social developments, the definition of biological parent has grown wider.  Up to four persons can be registered as parents of a child on the child's birth certificate.

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Adoptive Parents

A person who adopts a child has the same responsibilities toward a child as a biological child.

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Non-Biological (Non-Adoptive) Parents

A person who treats a child as a child of their family may become responsible for the support of that child.  This includes step-parents, but can include other relatives or friends who assume this role.

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A person who has a parent like relationship with a child can apply for parenting arrangements.

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See my article on Non-Parents and Children for orders that may be made in such cases.

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Is A Court Order Required to Transfer Parenting Responsibilities to Non-Bio/Adoptive Parent?
Yes.

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Sometimes it is in the best interest of a child to live with a non-parent, such as a grandparent, an aunt, an adult sibling, or a friend.  Parents may agree to the child living with this person.

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Parents automatically have custody of their child.  If there is a dispute between them, they may make an agreement about custody (and access) or they can ask the court to make a decision.

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Parents do not have the legal authority in Ontario (or in many other jurisdictions) to give custody of their child to a non-parent.  If they cannot care for their child, the government becomes involved.  This means they cannot give someone custody in a written agreement, they need a court order.

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What is the Process?
If the necessary documents and information are provided (and all parents agree), a judge may make an order, without the parties attending before the judge.  However, even with the parties agreement, a judge must be convinced that the arrangement is in the best interest of the child.

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Because of a very disturbing case where a child died in the care of a non-parent who was granted parenting responsibilities by a court order, there are some very firm requirements to provide a criminal and child protection report by the non-parent seeking parenting responsibilities.

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To transfer parenting responsibilities on consent (based solely on paperwork), the following main documents will be required:

• an Application or Notice of Change of a Final Order (to make the request)

• Minutes of Settlement, signed by all parents and the person receiving custody (preferably with a lawyer witnessing the signatures)

• an Affidavit in Support of a Claim for Parenting Arrangements (both Part A and B completed)

• an Affidavit of the person accepting parenting responsibilities, setting out their plan for care of the child

• an Affidavit of a parent, explaining why this change in parenting responsibilities is in the child's best interest

• a Vulnerable Person Police Check

• a child protection (children's aid) record's check

 

If a parent cannot be located, it may be possible to obtain an order dispensing with service on them (and their consent).  If a parent opposes the transfer of parenting responsibilities, that parent needs to be serve and the parties will have to attend before the judge.

 

Generally, the case should be started by the person seeking parenting responsibilities, but the participation of the parents are of great assistance.

 

When is Transfer of Custody Not Appropriate?
Judges will NOT transfer parenting responsibilities if it is sought for any of the following reasons:

• to establish the child's residence in a certain area in order for the child:

  • to join a particular sports team

  • to attend a specific school

  • avoid school fees (for example foreign student fees)

• to strengthen the immigration case of the person seeking parenting responsibilities