In Québec, the child's best interest is the fundamental principle with respect to intercountry adoptions. Any decision regarding a child must be in his best interests, while respecting his fundamental rights. This rule is fundamental in adoption matters.

Adoptions must meet conditions set forth by law. What is usually called an "intercountry adoption" is defined, in legal terms, as "the adoption of a child domiciled outside Québec". Hence, the law is intended for adoptions arranged in a foreign country and adoptions arranged in other Canadian provinces and territories.

The following Québec legislative documents pertain to intercountry adoptions :

• Civil Code of Québec
• Code of Civil Procedure
• Youth Protection Act
• Ministerial order respecting the adoption without a certified body of a child domiciled outside Québec by a person domiciled in Québec
• Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
• An Act to implement the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and to amend various legislative provisions in relation to adoption
• Ministerial order respecting the certification of intercountry adoption bodies

These Québec legislative documents establish the conditions that must be met by Quebecers who wish to adopt. The Civil Code of Québec further outlines types of adoptions and the effects of adoption. The rules pertaining to the consent and the adoptability of a child arise from the child's country of origin.

Applicable Québec rights can therefore be seen as a funnel : the general rules are established by the Civil Code of Québec and the Code of Civil Procedure; these rules are then made more precise by the Youth Protection Act. Next, come the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption and the Act to implement the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and to amend various legislative provisions in relation to adoption, which outline even more specific rules for certain types of adoptions.

Since this section does not present the legislative framework pertaining to a child's entry into Canadian territory, we recommend that you consult the Citizenship and Immigration Canada Website.

RULES THAT APPLY TO ALL ADOPTIONS

The Civil Code of Québec

The Civil Code of Québec establishes conditions for a person to adopt a child domiciled outside Québec:

a) the adoptive parent must be domiciled in Québec (sect. 563 C.C.Q.);

b) the adoptive parent must undergo a psychosocial assessment under conditions set forth by the Youth Protection Act (sect. 563 C.C.Q.); and

c) the adoptive parent must be of the age of majority and must be eighteen years older than the adopted child (sect. 543 C.C.Q.).

The Civil Code of Québec sets forth that adoption procedures must be undertaken by a certified organization. Since February 1^st, 2006, to override this general rule, the criteria and conditions set forth in the Order respecting the adoption without a certified body of a child domiciled outside Québec by a person domiciled in Québec must be met.

The effects of adopting a child domiciled outside Québec are governed by the Civil Code of Québec (sect. 3092 C.C.Q.). All adoptions taking effect in Québec  sever the previous parental relationship and create a new parental relationship which replaces the previous one (sect. 577 C.C.Q.). These are plenary adoptions, meaning that the child ceases to belong to his family of origin (sect. 577 to 581 C.C.Q.). Québec law sets forth that child adoption consents must have bee given in view of the adoption (sect. 574 and 581 C.C.Q.).

Under the laws of Québec, international decisions have effects when some procedures are completed in Québec. There are four possible adoption file scenarios (sect. 565 to 576 C.C.Q.), each of which is broken down into two major categories.

a) The child's State of origin is one in which the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is in force and:

a. it issues an adoption decree: in this case, if the conditions set forth in the Convention are met, the adoption decree can be recognised automatically by law, and administratively by the Secrétariat à l'adoption internationale; or

b. it does not issue an adoption decree: in this case, a placement order must be handed down by the Court of Québec. At the end of the placement order, the Court of Québec issues an adoption decree and issues a compliance certificate, as set forth in the Convention;

b) The child's State of origin is one in which the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is not in force and:

a. it issues an adoption decree: in this case, the decree must be recognized by a Québec court. This legal recognition is made via a motion to the Youth Division of the Court of Québec; or

b. it does not issue an adoption decree: in this case, a placement order must be handed down by the Court of Québec. At the end of the placement order, the Court of Québec issues an adoption decree.

The Code of Civil Procedure

The court competent to rule on adoption matters is the Youth Division of the Court of Québec. Procedures before this court are governed by the Code of Civil Procedure.

The Youth Protection Act

The Ministre de la santé et des Services sociaux (Secrétariat à l'adoption internationale ) intervenes in all adoptions of children domiciled outside Québec. It is responsible for keeping adoption files and following up on socio-biological history and biological family searches (sect. 71.4 Y.P.A.). When a child is proposed to an adoptive parent, the adoption procedure can only be pursued if the Ministre (Secrétariat à l'adoption internationale) has certified in writing that he does not know on any cause to oppose this adoption (sect. 71.8 Y.P.A.).

The mandatory psychosocial assessment set forth in section 565 of the C.C.Q. is conducted by the Director of Youth Protection or by a person designated by him under the law. In the very specific case where the child is domiciled in a State where the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is not in force, and providing that this State handed down an adoption decree, the psychosocial assessment can also be carried out by a member of the Ordre des psychologues du Québec or the Ordre professionnel des travailleurs sociaux du Québec (sect. 71.16 to 72.4 Y.P.A.) (Also refer to the Order respecting the certification of intercountry adoption bodies).

Finally, the amended Youth Protection Act sets forth more severe penalties when laws are violated during the adoption process (set. 135 to 135.2.1 Y.P.A.).

SPECIAL RULES THAT APPLY TO ADOPTIONS WITHOUT A CERTIFIED ORGANIZATION

Under the Order respecting the adoption without a certified body of a child domiciled outside Québec by a person domiciled in Québec, only persons meeting the conditions set forth in this text can undertake adoption procedures without a certified organization. Unless otherwise indicated, these special rules are in addition to the general rules.

Persons may be authorized to undertake adoption procedures without a certified organization in the following cases:

• the adoptive parent is related to the child under the parental relationship set forth in the order;
• the adoptive parent is a national or the child's State or origin, and conditions of the order have been met;
• owing to exceptional circumstances and for humanitarian considerations, the adoption is the measure most likely to ensure the child's rights are respected;
• the adoption concerns a child residing in a Canadian province or territory and who has been entrusted to a competent public authority in respect of a child protection or adoption in this province or territory.

When an application is submitted to the SAI, the adoption plan is analysed based on an assessment of the situation. The person must demonstrate that he or she has been in contact with the child, that the child has a handicap or special biological characteristics, that his or her life is in danger, or that he or she had been in the person's care for at least six months. The goal is not to initiate a search for a child who meets the above criteria, but to bring together an adult and a child who have already established an emotional bond.

The order also provides for the specific situations in which the Minister may assist the potential adoptive parent with the arrangements, and lists the terms and conditions of an adoption without assistance from a certified agency.

SPECIAL RULES THAT APPLY IN A STATE WHERE THE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION IS IN FORCE

When the child is domiciled in a country where the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is in force and conditions under this Convention are met, the recognition can be made automatically by law via an administrative process. The adoptive parent must obtain and provide a certificate of compliance from the child's State of origin. He must submit this certificate to the Ministre de la Santé et des Services sociaux (Secrétariat à l'adoption internationale) in order to obtain a birth certificate issued by the Directeur de l'état civil.

The Youth Division of the Court of Québec only intervenes in these files at the request of the Ministre (Secrétariat à l'adoption internationale), according to the principles set forth in the Act to implement the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and to amend various legislative provisions in relation to adoption.

SPECIAL RULES THAT APPLY IN A STATE WHERE THE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION IS NOT IN FORCE

When the child is domiciled in a country where the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is not in force, a legal intervention is required to ensure that the adoption has effects in Québec. Accordingly, in all such cases, the adoptive parent must file a motion with the Youth Division of the Court of Québec. Based on the child's State of origin, this motion is a motion for a placement order or a motion for recognition of judgment.

SPECIAL RULES SET FORTH BY THE CHILD'S SATE OF ORIGIN

Stricly speaking, it is not the Québec legislative framework, but Québec law, that sets forth that rules pertaining to the consents and adoptability of a child are subject to the child's State of origin. States of origin also usually set forth criteria applicable to adoptive parents, namely:

• the adoptive parent's age and the age difference with the child to be adopted;
• the adoptive parent's civil status;
• the adoptive parent's state of health; and
• other criteria.

It is therefore important to verify the applicable conditions for each country.

Rules pertaining to the confidentiality of adoption files

These rules apply to all adoption files. They specify that legal and administrative files in regard to the adoption of a child are confidential. No information contained in such files can be disclosed, if only to respect the law (sect. 582 C.C.Q.).

However, Québec law recognizes that the adopted child may wish to obtain information on his history or may wish to locate his biological family. All adoption files are kept by the Ministre (Secrétariat à l'adoption internationale) for this very reason. Conditions for exerting these rights are outlined in the Civil Code of Québec (sect. 583 and 584 C.C.Q.) and in the Youth Protection Act (sect. 71.13 to 71.15 Y.P.A.).