Leslie Taylor

Parents who obtain an adoption order outside of the province of Alberta must consider the effect of the foreign order under the Child and Youth Family Enhancement Act (CYFEA). Section 73 of the CYFEA provides that,

An adoption effected according to the law of any jurisdiction outside Alberta has the effect in Alberta of an adoption order made under this Act, if the effect of the adoption order in the other jurisdiction is to create a permanent parent-child relationship.

The Alberta Court of Queen’s Bench in ME v Alberta (Minister of Human Services), 2015 ABQB 251 (“ME v Alberta”) clarified that an adoption order does not need to strictly comply with the prescribed form of an adoption order granted pursuant to the CYFEA. The Court must look to the substance of the adoption order to make the sole consideration as to whether the foreign adoption order has the effect of creating a permanent parent-child relationship.

In making any determinations as to the adoption of a child under the CYFEA, the Court must do so in the best interests of the child considering the following matters and any other relevant matter, as set out by section 58.1 of the CYFEA,

  1. the importance of a positive relationship with a parent, and a secure place as a member of a family, in the child’s development;
  2. the benefits to the child of stability and continuity of care and relationships;
  3. the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development;
  4. the benefits to the child of maintaining, wherever possible, the child’s familial, cultural, social and religious heritage;
  5. the child’s views and wishes, if they can be reasonably ascertained;
  6. the effects on the child of a delay in decision‑making; and
  7. in the case of an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions, and the importance of preserving the child’s cultural identity.

The parents in ME v Alberta arrived in Canada with a child but were unable to adopt her pursuant to the CYFEA as the child was not a Canadian citizen or a permanent resident as required by section 62(3) of the CYFEA. The parents had previously obtained a kafala order in Sudan. Kafala was described as translating to the meaning of “support” and the order was viewed to be similar to a permanent guardianship order in Alberta. The Court considered whether the Sudanese kafala order was equivalent to an adoption order in Alberta under section 73 of the CYFEA.

On the face, the kafala order was not viewed to be equivalent to an adoption order in Alberta as it did not terminate the prior parent-child relationships. However, the Court found this was not determinative as the focus needed to be on the effect of the kafala order in creating a permanent parent-child relationship. The Court described that since the child was an orphan there were no pre-existing parent-child relationships and so the effect of the kafala order created a permanent parent-child relationship.

The Court went on to consider the factors set out in section 58.1 of the CYFEA before determining that it was in the child’s best interest to declare the effect of the kafala order as being equivalent to the effect of an adoption under section 73 of the CYFEA.