A.A.H. (Re): Permits Adoption by Deemed Parents Under the CYFSA

As Ontario family lawyers, we are no strangers to the evolving landscape of parentage and adoption law, particularly in the wake of the 2016 amendments to the Children’s Law Reform Act (CLRA), which took effect January 1, 2017 (O. Reg. 155/17), that broadened recognition of non-biological parents in assisted reproduction cases. Yet, the recent Divisional Court decision in A.A.H. (Re), 2025 ONSC 5564, marks a pivotal advancement. In a concise endorsement, Justice S.K. Stothart overturned a lower court’s dismissal of an adoption application by a non-birthing same-sex parent, holding that s. 199(2)(b) of the Child, Youth and Family Services Act, 2017 (“CYFSA”) may permit what is, in effect, a form of “self-adoption” where justified by Charter values and the child’s best interests.

This ruling not only resolves a statutory ambiguity but also equips us with a Charter-infused tool to safeguard our clients’ parental status on the global stage. For LGBTQ+ families navigating international travel or relocation, it offers a practical shield against the patchwork of foreign recognition of provincial parentage presumptions.

Background: A Familiar Scenario with High Stakes

T.H. and A.B., same-sex spouses married since November 16, 2013, welcomed A.A.H. via assisted reproductive technology, with A.B. as the birth parent. Under s. 8(1) Children’s Law Reform Act (“CLRA”) s. 8(1), T.H., as A.B.’s spouse at conception, was automatically deemed a legal parent, a status reflected on the child’s Statement of Live Birth. The couple has co-parented seamlessly since birth, with no parenting disputes in sight.

The issue? International travel. If the family travel outside Canada, they face the risk that T.H.’s parentage, which is deemed by way of provincial legislation, may not be recognized in another country. Parental status through adoption is legally recognized by signatory countries to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993). In particular, while Ontario law robustly recognizes T.H.’s parentage, many countries do not honor deemed status under foreign statutes like the CLRA. However, the Hague Convention mandates recognition of adoptions by signatories (107 Contracting States). T.H. thus applied for an adoption order under CYFSA s. 199(2), which allows a “parent” to seek adoption, aiming to layer Hague-compliant protection atop provincial rights.

Justice R. Restoule-Mallozi dismissed the application on March 24, 2025, deeming it “logically impossible” for existing legal parents to adopt their own child. She suggested a declaratory order instead. T.H. appealed to the Divisional Court under CYFSA s. 215(3.1), arguing the dismissal misread the statute.

The Divisional Court’s Analysis: Correctness Review and Statutory Ambiguity

On a correctness standard (Housen v. Nikolaisen, 2002 SCC 33, at paras. 8, 33, 36), Justice Stothart zeroed in on the interpretive crux: Does CYFSA s. 199(2)(b) permit a deemed parent to adopt the child they already legally parent? The provision states that “an application may be made by… a parent of a child… for an order for the adoption of a child,” vesting courts with discretion guided by the child’s best interests.

The Court found the wording “unclear,” silent on whether a parent applies on their own behalf or another’s. This ambiguity invited two “equally plausible interpretations,” triggering the remedial rule from Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, at para. 62, and A.(A.) v. B.(B.), 2007 ONCA 2, at para. 25: Where statutes may have multiple readings, favor the one consistent with Charter values, particularly s. 15 equality rights.

Justice Stothart opted for the Charter-compliant path, permitting what is, in effect, a form of self-adoption where justified by Charter values. She emphasized that denying such relief would disadvantage same-sex parents reliant on CLRA presumptions, which lack the universal portability of adoption orders.

“In the circumstances of this case, I am satisfied that interpreting the legislation in a manner that permits a parent to adopt their own child is consistent with the values enshrined in the Charter, specifically s. 15, as it applies to same sex parents who may require international recognition as a parent, over and above the provincial recognition set out in the CLRA.”(para. 16)

Critically, the Court held this interpretation does not open the floodgates: Adoption remains discretionary and best-interests driven (CYFSA s. 199(2)). In “superfluous” cases—where no added value is shown—courts may refuse. Here, however, the evidence tipped the scale.

Best Interests: International Protections Trump Provincial Sufficiency

No one contested T.H. and A.B.’s exemplary parenting. The best-interests pivot was pragmatic: Without adoption, T.H. risks non-recognition abroad, potentially barring emergency decisions (e.g., medical consent during travel). Adoption, by contrast, leverages the Hague Convention’s framework, ensuring recognition in signatories and likely deference in non-signatories honoring Canadian orders.

At para. 18, Justice Stothart crystallized the stakes: “If the family travel outside Canada, they face the risk that T.H.’s parentage… may not be recognized in another country.” This “reasonable and supported basis” rendered adoption non-superfluous and squarely in A.A.H.’s interests, preserving family integrity globally.

The endorsement considered the lower court’s “logical impossibility” as an error of law, affirming that Charter values demand flexibility for marginalized families.

Practical Implications for Ontario Family Lawyers

This ruling significantly impacts assisted reproduction and two-parent adoptions. Consider these key shifts in practice:

Same-Sex Non-Birthing Parents

Before Re A.A.H., same-sex families relied on declaratory orders to confirm parentage, since courts often viewed adoption as unnecessary once parentage was deemed under the CLRA. After A.A.H., the landscape shifts: a legal parent may seek an adoption order under s. 199(2)(b) CYFSA where doing so advances the child’s best interests—most notably to secure international recognition. Practice tip: Include affidavit evidence detailing travel plans, jurisdictional risks, and refer to Hague Convention protections to demonstrate the tangible benefit of adoption.

Opposite-Sex Deemed Parents

Although A.A.H. arose from a same-sex context, its reasoning does not turn exclusively on sexual orientation. The interpretive finding—that s. 199(2)(b) can extend to any parent if justified by the child’s best interests—may be argued by analogy. Still, because the judgment’s equality analysis (Charter s. 15) was framed around same-sex parentage, counsel should advance a broad best-interests rationale rather than equality-based arguments. Watch for appellate clarification or legislative response.

Step-Parent Adoptions

The decision leaves the existing step-parent adoption framework untouched, but it reinforces the court’s discretion to refuse redundant applications. Emphasize necessity: document the practical or legal value added by the adoption (e.g., decision-making authority abroad, immigration or medical recognition).

International Relocation and Mobility

In relocation cases under CLRA s. 21, A.A.H. provides a persuasive precedent. An adoption order can strengthen mobility arguments by confirming both parents’ legal equality and the child’s stability within that parental unit. Where cross-border residence or travel is contemplated, cite A.A.H. as supporting evidence of the importance of formalized parentage recognition.

Client Counselling

Advise clients—particularly same-sex or assisted-reproduction families—that although the CLRA deems parentage automatically, an adoption order now functions as a practical “global passport” for parentage. It provides Hague-Convention-compliant confirmation, avoiding costly declaratory motions or foreign recognition disputes. Frame it as a preventive measure, not redundancy.

Evidentiary Requirements

The onus remains on the applicant to show why adoption adds value. Support the record with: travel itineraries and evidence of international exposure; affidavit evidence outlining foreign law risks; and expert opinions on recognition of parentage or adoption abroad.

Broader Ramifications

Expect spillover effects in surrogacy and IVF contexts, where intended parents seek layered legal recognition. While A.A.H. centred on equality rights, its logic—that adoption may coexist with statutory parentage where the best interests demand additional certainty—could extend to all deemed-parent scenarios.

Legislative Outlook

Re A.A.H. exposes a drafting gap in s. 199(2) CYFSA. Family-law associations may wish to press for legislative clarification confirming that a parent may adopt their own child in limited, best-interests-driven circumstances.

Conclusion: A Step Toward Equitable Mobility

A.A.H. (Re) is a succinct triumph of purposive interpretation, blending statutory discretion with constitutional imperatives. It reminds us that family law must transcend borders, ensuring our clients’ bonds endure wherever life takes them. As practitioners, embrace this tool: Draft those adoption applications with renewed vigor, armed with Stothart J.’s Charter lens.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.