P-34.1, r. 2 - Regulation respecting the adoption without a certified body of a child domiciled outside Québec by a person domiciled in Québec

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter P-34.1, r. 2

Ministerial Order respecting the adoption without a certified body of a child domiciled outside Québec by a person domiciled in Québec

Youth Protection Act

(chapter P-34.1, s. 71.6).

Civil Code of Québec

(art. 564).

DIVISION 1 GENERAL

1. This Order governs the adoption of a child domiciled outside Québec by a person domiciled in Québec when the adoption arrangements are made without a body certified by the Minister under the Youth Protection Act (chapter P-34.1).

M.O. 2005-019, s. 1.

2. Pursuant to article 564 of the Civil Code, only persons who meet the criteria and conditions set out in this Order may, without a body certified by the Minister, make arrangements for the adoption of a child domiciled outside Québec.

M.O. 2005-019, s. 2.

3. A prospective adopter must satisfy the Minister of Health and Social Services that the criteria and conditions set out in this Order and in the provisions that apply in Québec and in the child’s State of origin have been met.

M.O. 2005-019, s. 3.

4. A prospective adopter authorized by the Minister must make the adoption arrangements under the supervision or with the assistance of the Minister, as the case may be.

M.O. 2005-019, s. 4.

5. Unless otherwise provided in this Order, the provisions relating to the adoption of a child domiciled outside Québec by a person domiciled in Québec apply to adoptions under this Order.

M.O. 2005-019, s. 5.

6. A prospective adopter in pursuing the proposed adoption must comply with the provisions that apply in Québec and in the child’s State of origin.

M.O. 2005-019, s. 6.

DIVISION 2 ADOPTIONS AUTHORIZED

§ 1 . — Adoption by the adopters themselves of a child domiciled outside Québec

7. A person may be authorized to make adoption arrangements without a certified body if

(1)  the proposed adoption is of a brother, sister, nephew, niece, grandson, grand-daughter, cousin, half brother or half sister of the person or of the person’s spouse including a de facto spouse with whom the person has been living for at least 3 years, provided that neither the person nor the person’s spouse is bound to another person by marriage, civil union or another form of conjugal union that is still valid;

(2)  the proposed adoption is of a child in the care of a competent child protection or adoption authority who is domiciled in a State for which no body has been certified, if

(a)  the prospective adopter is or was a national of the State in which the adoption is being sought; and

(b)  under the law of that State, only a person who is or was a national of that State can adopt a child domiciled in that State; or

(3)  in the opinion of the Minister, owing to exceptional circumstances and for humanitarian considerations, the adoption of a child by the prospective adopter is the measure most likely to ensure the child’s rights are respected owing to any of the following reasons:

(a)  the child is in a situation such that the child’s life or health would be in serious danger if the child were not adopted by the prospective adopter;

(b)  the child has a handicap or biological characteristics that cause the child’s rejection by the community in the child’s State of origin; or

(c)  the child has been placed in the care of the prospective adopter and the prospective adopter has, for 6 consecutive months in the past 2 years in the child’s State of origin, assumed the custody and supervision of the child and has fed and maintained the child and ensured the child’s education because of the parents’ or tutor’s inability to do so.

M.O. 2005-019, s. 7.

§ 2 . — Adoption by the adopters themselves of a child domiciled in another province or a territory of Canada

8. A person may be authorized to make adoption arrangements without a certified body if the proposed adoption is of a child domiciled in a province or territory of Canada who has been placed in the care of a competent public child protection or adoption authority in that province or territory.

M.O. 2005-019, s. 8.

§ 3 . — Adoption with the assistance of the Minister

9. The Minister may assist the adopter with the adoption arrangements if

(1)  the certification of the body with which the adopter has entered into a contract has not been renewed or has been suspended or revoked by the Minister and the adopter’s file has already been forwarded to the State of origin;

(2)  the adoption cannot take place through the certified body because the child’s State of origin no longer authorizes the body to make adoption arrangements in its territory and the adopter’s file has already been forwarded to the State of origin;

(3)  the Minister wishes to assess the advisability of certifying a body for a State of origin for which no body has been certified;

(4)  the child’s State of origin requests the Minister intervene; or

(5)  an agreement entered into between Québec and the child’s State of origin provides for adoption with such assistance.

M.O. 2005-019, s. 9.

DIVISION 3 TERMS AND CONDITIONS OF THE ADOPTION PROCESS

§ 1 . — Authorization to initiate adoption arrangements without a certified body

10. The Minister receives the application from a prospective adopter who wishes to adopt without a certified body and must ascertain whether the application is eligible under this Order and the provisions that apply in Québec and in the child’s State of origin.

M.O. 2005-019, s. 10.

11. To determine whether the prospective adopter satisfies the provisions of the State of origin, the Minister may require the prospective adopter to provide a certified true copy of those provisions. The Minister may also require the prospective adopter to provide a certificate drawn up by a jurisconsult.

M.O. 2005-019, s. 11.

12. The Minister must furnish the prospective adopter having filed an eligible application with a form allowing the Minister to collect the information required concerning

(1)  the identity of the prospective adopter, establishing compliance with the age, civil status or family situation criteria;

(2)  where applicable, the identity of the child and a description of the child’s living conditions; and

(3)  where applicable, the identity of the persons or authorities in whose care the child has been placed.

M.O. 2005-019, s. 12.

13. A prospective adopter must submit in support of the application all the documents required by the form to allow the following in particular to be established:

(1)  the age of the prospective adopter and, if applicable, the age of the child;

(2)  the nationality of the prospective adopter and, if applicable, the nationality of the child;

(3)  if applicable, the kin relationship between the prospective adopter and the child; and

(4)  the exceptional circumstances, if any, that warrant the processing of the application on humanitarian grounds.

M.O. 2005-019, s. 13.

14. The Minister must verify the information and documents received. In considering the application, the Minister may contact the prospective adopter and if the Minister considers it necessary, call the prospective adopter to an interview.

M.O. 2005-019, s. 14.

15. In considering the application and at any stage in the adoption process, the Minister may consult the immigration authorities and the competent adoption authorities in Québec or in the child’s State of origin.

In deciding the application, the Minister must consider the situation in the State in which the child is domiciled and the guarantees given to the child, the child’s parents and the prospective adopter.

M.O. 2005-019, s. 15.

16. After the application has been considered and all additional information and documents required by the prospective adopter’s or the child’s specific situation have been provided, the prospective adopter receives, if applicable, confirmation authorizing the prospective adopter to undergo a psychosocial assessment and, if the recommendation in the assessment is positive, to initiate adoption arrangements in the State of origin concerned, on the conditions provided for by law and on any conditions the Minister considers necessary.

Except in urgent circumstances, the Minister must notify the prospective adopter in writing as prescribed by section 5 of the Act respecting administrative justice (chapter J-3) before refusing to grant the authorization referred to in the first paragraph, and allow the prospective adopter at least 10 days to present observations. The Minister’s decision must be in writing and give reasons; an original must be sent to the prospective adopter.

M.O. 2005-019, s. 16.

17. The evaluator must send an original of the psychosocial assessment to the Minister.

M.O. 2005-019, s. 17.

18. On confirmation by the Minister of receipt of the positive psychosocial assessment, the prospective adopter may, pursuant to the authorization granted under section 16, initiate adoption arrangements in the State of origin concerned.

M.O. 2005-019, s. 18.

§ 2 . — Adoption arrangements and post-adoption follow-up

19. An adopter authorized to make adoption arrangements without a certified body must personally prepare his or her file and submit it to the State in which he or she is seeking to adopt.

M.O. 2005-019, s. 19.

20. The adopter must inform the Minister of the arrangements made and, on request, provide the Minister with documents showing that the adoption arrangements are in conformity with the provisions that apply in Québec and in the child’s State of origin.

M.O. 2005-019, s. 20.

21. Before accepting an adoption proposal, the adopter must file a copy of the proposal with the Minister who must ascertain whether it conforms to the recommendation in the adopter’s psychosocial assessment.

M.O. 2005-019, s. 21.

22. The adopter must show that the child is eligible for adoption by producing a decision issued by the competent authority in the State of origin.

M.O. 2005-019, s. 22.

23. The adopter must provide the Minister with proof that all consents have been given in view of a full adoption, as prescribed by articles 568 and 574 of the Civil Code.

The Minister may require consent in the appropriate form attached as a schedule to this Order.

M.O. 2005-019, s. 23.

24. Every document produced pursuant to this Order and written in a language other than French or English must be accompanied by a translation into French certified by an accredited translator, or in the absence of an accredited translator, by a qualified person in Québec.

M.O. 2005-019, s. 24.

25. Except for the adoptions referred to in paragraph 1 or subparagraph c of paragraph 3 of section 7, an adopter may not establish contact with the biological parents in any of the following circumstances: before the child is born, before the child has been declared eligible for adoption, before the consents to the adoption have been given, or before adoption in the State of origin has been considered for the child, if such an adoption is possible.

M.O. 2005-019, s. 25.

26. The adopter must immediately inform the Minister of any change in his or her situation, or of any change concerning the child to be adopted or the persons, institutions or authorities in whose care the child has been placed, if the changes could affect the Minister’s decision. The notice must be accompanied by any document or information relevant to the change.

If the Minister considers the change is material, the Minister may request an interview with the adopter or any other person concerned by the proposed adoption.

M.O. 2005-019, s. 26.

27. The Minister may amend or withdraw an authorization and terminate the adopter’s arrangements if the Minister’s verifications reveal an irregularity in the adoption process, or if the adopter has made misrepresentations or distorted a material fact in the application or in any document or information required in connection with the proposed adoption.

Except in urgent circumstances, the Minister must notify the adopter in writing as prescribed by section 5 of the Act respecting administrative justice (chapter J-3) before amending or withdrawing the authorization, and allow the adopter at least 10 days to present observations. The Minister’s decision must be in writing and give reasons; an original must be sent to the adopter.

An amended authorization or a notice of withdrawal, as the case may be, must be sent by the Minister to the persons or authorities concerned by the application. A copy must be sent to the adopter.

M.O. 2005-019, s. 27.

28. A person who withdraws from the proposed adoption must so inform the Minister in writing within 30 days of the person’s decision.

M.O. 2005-019, s. 28.

29. The adopter must as soon as possible inform the Minister of the child’s arrival in Québec.

M.O. 2005-019, s. 29.

30. The adopter must, within 6 months after the child’s arrival in Québec, undertake the judicial procedures required for the adoption to produce its effects in Québec.

The adopter must send a copy of the court’s decision to the Minister as soon as it is received.

M.O. 2005-019, s. 30.

31. The adopter must, if required, produce and send the child’s progress reports in the form, at the intervals and within the time determined by the child’s State of origin, and file a copy of the reports with the Minister.

M.O. 2005-019, s. 31.

DIVISION 4 COMING INTO FORCE

32. (Omitted).

M.O. 2005-019, s. 32.

SCHEDULE I

(s. 23)

SPECIAL CONSENT TO THE ADOPTION OF A CHILD DOMICILED OUTSIDE QUÉBEC BY A PERSON DOMICILED IN QUÉBEC

M.O. 2005-019, Sch. I.

SCHEDULE II

(s. 23)

GENERAL CONSENT TO THE ADOPTION OF A CHILD DOMICILED OUTSIDE QUÉBEC BY A PERSON DOMICILED IN QUÉBEC

M.O. 2005-019, Sch. II.

SCHEDULE III

(s. 23)

CONSENT OF A CHILD DOMICILED OUTSIDE QUÉBEC TO THE CHILD’S ADOPTION BY A PERSON DOMICILED IN QUÉBEC

M.O. 2005-019, Sch. III.

REFERENCES

M.O. 2005-019, 2006 G.O. 2, 215