The Adoption Act ⁽¹⁾ sets out the law pertaining to adoption in the Province of Manitoba. A child may only be adopted if a judge of the Court of Queen's Bench grants an order of adoption pursuant to the Adoption Act. After an adoption order is granted, the child's registration of birth is redrafted and resubmitted to Vital Statistics. An unmarried mother is permitted to leave the space for the father's name blank. Otherwise, where two parents are named in a birth certificate they must be one of each gender: a "mother" (female) and "father" (male). It is not possible to register a child with 2 mothers or 2 fathers pursuant to The Vital Statistics Act regulations.

A child, once adopted, ceases to be the child of their previous parent(s) and becomes the child of their adoptive parent(s) for all purposes in law. This includes the right of the child:

• to receive a portion of the parent's estate if the parent dies intestate;
• to receive a portion of the parent's estate if they have been dependent upon that parent and money is needed for their continued support; and
• to secure support from the parent during that parent's lifetime without having to prove a relationship of loco parentis with the parent, that is, without having to prove that the person has been actively parenting them.

Adoption also creates rights for the parent(s):

• to secure medical attention for the child;
• to make decisions for the child including those related to medical, religious and educational concerns;
• to travel with the child and determine their place of residence;
• to seek custody of the child in the event of a separation from the other parent, if that is in the child's best interests; and
• to seek access to the child in the event of a separation from the other parent, without having to prove that exceptional circumstances exist.

There are 7 kinds of adoptions set out in the Adoption Act: adoption of a permanent ward, private adoption, inter-country adoption, de facto adoption, extended family adoption, adoption by a person who has married the child's parent, and adoption of an adult.

There are two ways to adopt: as a couple jointly, or singly as an individual. In general, a single individual, whether heterosexual or homosexual, can apply to adopt a permanent ward, a child through private adoption, a child from another country, or another adult. However, a single individual can only apply to adopt a family member of their partner, including a child of that partner, if the couple is heterosexual. Further, joint applications for adoption are restricted to heterosexual couples, even if the homosexual couple has been parenting a child jointly and are seeking to formalize that relationship. Only one of the two homosexual partners can apply to adopt the child.

The specific provisions of the Adoption Act regarding whom may adopt and when are set out in 7 separate Divisions, each one dealing with a different kind of adoption.

Division 1 -Adoption of a Permanent Ward

This Division applies to the adoption of a child who is a permanent ward of Child and Family Services, usually because his or her parent(s) were unable or unwilling to care for the child properly. Sometimes the adopting parent(s) are unknown to the child, and sometimes they have been acting as the foster parent(s) to the child. ⁽²⁾

The following persons are permitted to apply for adoption of a child who is a permanent ward of Child and Family Services:

1. a husband and wife;
2. a man and a woman who are not married but are cohabiting as spouses; or a single adult. ⁽³⁾

The Adoption Act provides that an application to court for an adoption order under this Division must include, where applicable, "the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple". ⁽⁴⁾ Only opposite-sex couples can marry in Canada. While same-sex partners can cohabit, the declaration of commitment requires the couple to declare that they have been living together as "husband and wife" ⁽⁵⁾.

Therefore, while a gay or lesbian person can apply as a single adult to adopt a permanent ward, he or she cannot apply jointly with his or her same-sex partner to adopt a permanent ward. This right to apply jointly is specifically reserved for opposite-sex couples.

Division 2 - Private Adoption

This Division applies to children who are surrendered by their parent(s), usually at birth, to be adopted by a person or persons who are otherwise unknown to the child.

This section says nothing about joint applicants having to be either married or opposite-sex cohabiting couples. However, an application to court for an adoption order under this Division must include, where applicable, "the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple". ⁽⁶⁾ Married joint applicants are always opposite-sex couples because only they can marry in Canada. Cohabiting joint applicants are also opposite-sex couples because the form requires that they declare that they have been living as "husband and wife". Furthermore, it is not currently possible to register a child with 2 mothers or 2 fathers. Therefore, while a gay or lesbian person can apply as a single adult to adopt a child privately, the right to apply jointly to adopt such a child is reserved for opposite-sex couples only.

Division 3 - Inter-Country Adoption

This Division applies to the adoption of children from countries other than Canada. In such case, the provisions of the Adoption Act in Division 1 apply, which means that joint applications are restricted to heterosexual couples. ⁽⁷⁾ Therefore, while a gay or lesbian person can apply as a single adult to adopt a child from another country, he or she cannot apply jointly with his or her same-sex partner to adopt such a child. This right to apply jointly is specifically reserved for opposite-sex couples.

Division 4 - De Facto Adoption

De facto adoption occurs where a person or a couple has been caring for and maintaining a child for at least two consecutive years and wishes to adopt that child. An application for a de facto adoption can be made by a single person or jointly, either by a husband and wife or by "a man and woman who are not married but are cohabiting as spouses". ⁽⁸⁾

Therefore, while a gay or lesbian person can apply as a single adult to adopt a child that he or she has been parenting for at least 2 years, he or she cannot apply jointly with his or her same-sex partner to adopt such a child when the couple has been parenting the child jointly. This right of joint application is specifically reserved for opposite-sex couples.

Division 5 - Extended Family Adoption

This Division applies to the adoption of a child by a member or members of the child's extended family where the child has resided with them for at least 6 months. ⁽⁹⁾

The definition of "extended family" includes the child's grandparents, siblings, aunts, uncles, and cousins, the spouse of such persons, and "an unmarried adult who is cohabiting in a relationship of some permanence" with any of those persons, so long as they are "of the opposite-sex". ⁽¹⁰⁾ Also, an application under this Division must include the marriage certificate of a married applicant or the prescribed declaration of commitment of the cohabiting couple. ⁽¹¹⁾ Therefore, the right to apply under this Division for an extended family adoption excludes joint applications by same-sex couples and also excludes homosexuals from applying individually when their only relationship to the child is through their same-sex common-law partner.

Division 6 - Adoption by Person who has Married the Child's Parent

This Division applies to the adoption of the child of a person that the applicant is either married to, or is living with, where that child is being cared for by both the applicant and the child's parent. There is no minimum time that the applicants must have been caring for the child. Generally, this section is used by couples who are parenting the biological child of one of them and they wish the other parent to adopt the child because the child's other biological parent is unable or unwilling to parent.

The Adoption Act specifically confines an application to either a spouse or an opposite-sex common-law partner ⁽¹²⁾. Further, the application must include either a copy of the marriage certificate or declaration of commitment ⁽¹³⁾ which requires the couple to declare that they have been living as "husband and wife". Accordingly, same-sex couples are excluded from applying to adopt their partner's child.

Division 7 - Adoption of an Adult

This Division applies to the adoption of adults. It says nothing about joint applicants having to be either married or opposite-sex cohabiting couples. However, an application to court for an adoption order under this Division must include, where applicable, "the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple". ⁽¹⁴⁾ Again, since the declaration form requires the couple to declare that they have been living as "husband and wife", and marriage is only legal between a man and a woman, joint adoptions of adults are reserved for opposite-sex couples only.

In summary, there is no absolute prohibition on adoption by gays and lesbians in Manitoba. They are free to apply to adopt as single individuals, so long as they do not wish to adopt their partner's child or extended family member. There are no such restrictions on heterosexuals who may apply to adopt any child, either as an individual or as a couple, even if they are not married to their partner, but are simply living together.

Footnotes

1. The Adoption Act, S.M. 1997, c. 47 - Chap. A2.
2. The Adoption Act, S.M. 1997, c. 47 - Chap. A2, section 41.
3. Ibid, section 36.
4. Ibid, section 50(h).
5. The Adoption Act, Adoption Regulation A2 - 19/99, form AA - 14.
6. The Adoption Act, S.M. 1997, c. 47 - Chap. A2, section 67(h).
7. Ibid, section 71(2).
8. Ibid, section 73(1).
9. Ibid, section 83.
10. Ibid, section 1.
11. Ibid, section 85.
12. Ibid, section 88.
13. Ibid, section 90.
14. Ibid, section 96.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Adoption Law in Manitoba
III) Adoption	IIIb) Submissions and Consultations
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report