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(Sept. 20, 2007) That "hunt for hidden adoption information" lasted just two days ... on Sept. 19 the Superior Court of Ontario declared part of the Adoption Information Disclosure Act unconstitutional. Justice Edward Belobaba found it was unconstitutional for the government to release information to adoptees and birth parents without giving them some way to veto its release.
In a constitutional challenge heard June 25-26, four Ontario residents (three adoptees and a birth parent) had argued that the law should not allow birth parents and adoptees to access information about each other, without allowing them to file a disclosure veto if they wanted to stay anonymous, as permitted in Alberta, British Columbia and Newfoundland.
The ruling handed down Sept. 19 found parts of the legislation dealing with access to birth registration information unconstitutional. Judge Belobaba wrote, "The applicants object to the fact that their identities will be disclosed to persons that they would least want to have this information."
Because of the decision, sections of the Act that allow for disclosing identifying information are no longer in effect ... the Ontario government has stopped taking applications for information and can't act on applications already in hand.
In its Sept. 20 bulletin COAR said it was deeply disappointed, conferring with its lawyers, and waiting to hear if the government will appeal.
To read the court ruling, go to www.canlii.org/en/on/onsc/doc/2007/2007canlii38387/2007canlii38387.html. To read the original law, see www.ontla.on.ca/bills/bills-files/38_Parliament/session2/b183ra.pdf.
Ontario opens its adoption files; original records available
BY ROBIN HILBORN, Family Helper editor
(Sept. 10, 2007) The hunt for hidden adoption information starts Sept. 17, 2007, when the Adoption Information Disclosure Act comes into force in Ontario.
As of Sept. 17, adult adoptees and birth parents, whose adoptions were finalized in Ontario, can apply to get information in adoption orders and original birth records.
The opening of Ontario adoption records means that adoptees over 18 can access previously sealed records, and discover their original name. Birth parents can learn the current name of a child they placed for adoption, but only if the child is now an adult (over 18). These details could lead to a long-separated parent and child finding out about each other and arranging a meeting if they wished. At the same time, someone who doesn't wish to be contacted can file a "no contact" notice.
"This is the right law for Ontario. We have fully supported the intent of the legislation from the start," said Sandra Scarth, president of the Adoption Council of Canada. "You can put a 'no contact' notice on file if you don't wish to be contacted. But there would be no disclosure veto to prevent identifying information from being released. We also like the fact that the policy on opening adoption records would be retroactive, applying to all adoptions finalized in Ontario, past and future."
"We are excited to see Ontario take a leadership role by allowing adoptees and birth parents to access their adoption records," said Professor Michael Grand, of the Coalition for Open Adoption Records (COAR), in Toronto. "The new legislation is based on the best research and practices surrounding information exchange."
Ontario now joins Alberta, British Columbia and Newfoundland in unsealing its adoption records. However the law in the latter three provinces allows adoptees and birth parents to file a disclosure veto if they want to prevent release of identifying information. Ontario law does not. Instead it provides that to keep their records sealed adoptees or birth parents would need to prove to the Child and Family Services Review Board that revealing their identifying information would cause harm.
The Ontario government asserts that the new legislation balances the right of access to birth and adoption records with the right of an individual not to be contacted if they don't wish it.
Under the new law, adult adoptees and birth parents can:
* Register a notice specifying a "contact preference" on how they prefer to be contacted.
* Place a "no contact" notice on their file if they don't want to be contacted.
* Apply to the Child and Family Services Review Board for an order to prevent disclosing identifying information if there are concerns about sexual harm or significant physical/emotional harm.
Adult adoptees can also register a "waiver of protection" that will allow the Ontario Registrar General to release information to a birth parent even though the adopted person was a victim of abuse.
To register "no contact" notices, "contact preferences" or place "waivers of protection" on their files, adult adoptees and birth parents can find the forms at www.serviceontario.ca or can call 416-325-8305 or 1-800-461-2156.
You may also apply for an order to prohibit releasing information which would identify you, in order to prevent sexual harm or significant physical or emotional harm. Apply to the Child and Family Services Review Board.
Adult adoptees and birth parents can still get non-identifying information, which could be matched with identifying information from the Registrar General. The government notice suggests, "You may wish to consider this when deciding whether or not to submit an application for an order to prohibit the disclosure of identifying information and whether or not to register a 'no contact' notice on your file."
The new law also eliminated the Adoption Disclosure Register (ADR), which since the 1980s ran a mutual match registry for adoptees and birth parents, and an active search registry on behalf of adoptees. ACC president Sandra Scarth said she "felt that closing the ADR, which offered some assistance and counseling for reunions when desired, was not the best way to implement these changes." COAR also did not support closing the ADR.
On Nov. 1, 2005 Bill 183, the Adoption Information Disclosure Act, 2005 passed the Ontario legislature by a vote of 68 to 19, and became law on receiving royal assent Nov. 3. It went into force on Sept. 17, 2007.
For a summary of the legislation, see the Explanatory Note prepared by the Ontario Legislative Library, in "Opening adoption records: success in Ontario" (Nov. 3, 2005).
For more, see the Adoption Council of Canada article, "Open Records: ACC Says It's 'The Right Law for Ontario'".
Information from the Ontario Ministry of Community and Social Services is at Ontario's New Adoption Information Law.
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