Estate Planning

B.C. Court Rules that Estate Planning Complications are Not a Sufficient Reason to "Unadopt" a Child

By Hull & Hull LLP

The Supreme Court of British Columbia recently dismissed an application where the applicant sought to adopt a child he had previously adopted with his common law wife.  

The adoptive father was actually the biological grandfather of the minor child in question.  When the minor, who was born in Yukon, was an infant, her biological parents were unable to care for her and she was made a ward of the state.  She later went to live with her grandfather in British Columbia, and the grandfather decided to adopt her.  

He was told that Yukon did not permit one-parent adoptions (although this turned out not to be correct).  As a result, his common-law wife joined him as an adoptive parent and the adoption went through.    

After the adoption was finalized, the adoptive mother discovered that the minor was legally considered her child for estate planning purposes and could potentially have a legal claim to her estate.  She worried that this would have a negative effect on her relationship with her adult children.  

The adoptive father then applied for an order that he be permitted to adopt the child (again) – the effect being that he would be the only adoptive parent and the adoptive mother would have 'unadopted' the child.  

The court dismissed the application.  In its reasons it pointed to the language of the B.C. Adoption Act that made clear that the paramount consideration was the best interests of the child.  The judge found that the application was not only not in the best interests of the child but had nothing to do with the children's interests at all.  

The court was also distinctly unimpressed with the argument that the adoptive mother's estate planning might be negatively impacted.  Indeed, the court was concerned that if it granted the relief sought it might be depriving the child of rights it had obtained by being adopted.  

Have a great day!

Megan F. Connolly 

Full post as published by Toronto Estate Law Blog on July 21, 2009 (boomark / email).