GRSJ224/LGBT Adoption in Canada

LGBT adoption otherwise colloquially known as ‘same-sex’ adoption refers to adoption by a couple or individual (depending on applicable guidelines) who identifies on the LGBT spectrum. There are currently no laws in Canada prohibiting the adoption by same-sex couples or individuals, however, international adoptions by Canadian LGBT couples/individuals may be prohibited based on the laws of the respective country.

History of LGBT Adoption in Canada

From the ‘anti-gay’ legislation and the openly negative attitudes towards  the LGBT community in the early to mid 20th Century, to the current climate of social acceptance and the realization of rights and equality for the LGBT community, LGBT adoption has come hand in hand with the access to basic rights in the LGBT community.  

Movement towards the legalization of adoption for same-sex couples began in the 1990’s with many court rulings realizing the protections granted especially by Section 15 of the Canadian Charter of Rights and Freedoms.

This culminated in May 1995 when an Ontario judge ruled against the Child and Family Services Act of Ontario as current policy did not allow ‘same-sex’ couples to file a joint application for adoption. The judge found that this policy violated Section 15 of the Canadian Charter of Rights and Freedoms and ruled with the plaintiffs who were then allowed to process their adoption. This made Ontario the first province to legalize joint ‘same-sex’ adoption with British Columbia, Alberta and Nova Scotia re-assessing their own adoption policies in light of Section 15, soon after.

Legislation Around LGBT Adoption

While the specific legislation varies by province, in general, provincial legislation is based off of the Canadian Charter of Rights and Freedoms and in particular Section 15, which is as follows:

• “15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

This implies equal and fair distribution of rights and enforcement of laws for each Canadian regardless of sex, race, etc. and this has been expanded by further court ruling to include sexual orientation as a criteria that can be discriminated against. (Egan v. Canada)

Furthermore the rights of the LGBT community were further enshrined in the Canadian Human Rights Act in which Section 2 and 3 state:

• "2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”
• "3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

With such legislation in place to uphold the equality of the LGBT community at the highest level of law and with the current judicial attitude towards upholding rights for all, after a long struggle the LGBT community have finally attained visibility and the sharing of equal rights. This goes for legislation regarding LGBT adoptions, as now ‘same-sex’ parents have the same rights and are recognized in the same light as heterosexual parents. In the cases of discrimination, they are in clear violation of the Charter of Rights and Freedoms, the Human Rights Act and previous Supreme Court rulings and thus are easily actionable against in court.

Statistics

According to Statistics Canada census of ‘same-sex’ couples in 2016:

• In 2016 there were approximately 73,000 ‘same-sex’ couples in Canada
• This number represented 0.9% of all couples in Canada
• Of the 73,000 couples about one-third of them were married whereas the rest were common-law
• As compared to the last census the number of ‘same-sex’ couples increased at a much higher rate (~60%) compared to ‘opposite-sex’ couples (~10%)
• In regards to parenting, about one in eight ‘same-sex’ couples had children living with them as compared to one in two for ‘opposite-sex’ couples

The relevant data indicates and implies that with the increase in the number of ‘same-sex’ couples and the number of ‘same-sex’ couples living with children that attitudes and legislation today support the needs of the ‘same-sex’ parent.

But this being said, are not indicative of the number of actual adoptions (as the criteria were biological and adopted children) and are not indicative of single parents who identify as LGBT or the LGBT community as a whole. With data on LGBT adoptions in general being scarce in general. This indicates while some members of the LGBT community have gained visibility, other members are still struggling to do the same.

Adoption Process

The adoption process varies from province to province but in general share some similarities.

In British Columbia:

• Requirements:
  • Parent(s) are B.C. residents (for at least 6 months)
  • They are at least 19 years old
  • Any one or two adults may jointly apply

It is also stated that “sexual orientation doesn’t matter”.

• The process takes four major steps as outlined below:
  • Step 1: The prospective parent(s) submit an online application after which a relationship is established with Adopt BC Kids, where child matching and other requirements such as the criminal records check, medical reference and personal references are given.
  • Step 2: Upon completing step one, the prospective parent(s) must complete the Adoption Education Program where the parent(s) are taught about topics such as childhood trauma, attachment and grief and loss.
  • Step 3: This part of the process includes a home study where a social worker will make multiple visits to the prospective family to establish whether the family is in a suitable situation to adopt a child.
  • Step 4: The final part of the process where the final matching process will begin and the social worker will work with the family to find a perfect match for both the family and the child.