Ontario's Open Adoption Registry: An Update

Reader C.H. provides the following update on the opening of Ontario's adoption records:

Some people I know have now received their identifying information.

In cases that I know about, it seems that the father's name is not on the documents even though the mother has named him. I have been told this by people who fortunately have reunited but wanted to see if it was true about social workers omitting the unwed fathers name before 1980, even in cases where the mother names the unwed father and the father admits paternity. Possibly the information was whited out by others?

The wording in the application forms is that the unwed father must be *named* on the birth registration in order to get the identifying information.

I wonder how many fathers are going to find out that they are not entitled to identifying information (despite no disclosure veto being filed) because their name is missing from the statement of birth?

Also see our recent report on the opening of Ontario's adoption records: Ontario Adoption Registry Records Opened, June 1, 2009.

- Garry J. Wise, Toronto

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Ontario Adoption Registry Records Opened, June 1, 2009

On June 1, 2009, Ontario opened its adoption registry, to permit adopted adults and their biological parents to learn more about each other.

The Provincial Government's June 1 press release stated:

McGuinty Government Opens Records For The First Time Since 1927

Starting today, adopted adults and birth parents can get more information about their past.

Ontario is making it easier for many Ontarians to look for information about their birth relatives. The Access to Adoption Records Act, 2008 gives adopted adults and birth parents access to information that is currently sealed in their adoption records. Adopted adults and birth parents can also protect their privacy by filing a disclosure veto or no contact notice.

Individuals should contact Service Ontario to apply for information from their birth and adoption records. This service is free.

A reader passed this information on to me in June, and I confess to being derilict in posting it immediately, as I should have.

This is an important and exciting development for many with personal experience of adoption in the Province.

Thanks to C.H. for keeping us informed.

- Garry J. Wise, Toronto

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New Ontario Adoption Disclosure Law In Effect

Reader Cathy Henderson was kind enough to provide an update on the status of Ontario's adoption disclosure amendments.

She advises that Bill 12, the Access to Adoption Records Act has passed Third Reading and received assent on May 14, 2008.

A news release at Canada News Wire provides more detail:

A new Ontario law will soon give adult adoptees and birth parents access to information that is currently sealed in their adoption records. For years, adoptees and birth parents have worked to get personal and family information from their original birth certificates and adoption records. Ontario's new law will help adoptees find out what their original names were, as well as who their birth parents were. It could also help birth parents learn the name their child was given after he or she was adopted.

The law includes a new disclosure veto...

Adoptees and birth parents can begin to apply for disclosure vetoes in September 2008. Adoptees and birth parents will be able to apply for information from their adoption records starting in June 2009....

Ontario is the fifth Canadian province to open its adoption records.

The new law replaces a previous Ontario adoption disclosure law which was struck down in September 2007.

- Garry J. Wise, Toronto

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Ontario Introduces New Adoption Disclosure Law

CNW has the following news release:

Ontario Moves Forward To Open Adoption Records

New Legislation Would Provide Greater Openness In The Future, Protect Privacy For Past Adoptions

TORONTO, Dec. 10 /CNW/ - The Ontario government has introduced new legislation that will, if passed, help enshrine openness in future adoption records while providing a disclosure veto for people involved with past adoptions, Minister of Community and Social Services Madeleine Meilleur announced today.

"We strongly believe that people should be able to learn about their own personal history," said Meilleur. "The legislation, if passed, will make open adoption records a cornerstone of Ontario's adoption laws. At the same time, it would safeguard the privacy of those involved in past adoptions."

The new legislation would, if passed, allow adult adoptees and birth parents, whose adoptions were registered in Ontario, to:

• Apply for copies of their adoption orders and birth registrations
• Place a disclosure veto on their file if their adoption order is made
  in Ontario before September 1, 2008.

In addition, anyone who chooses to place a disclosure veto on their file would be asked to voluntarily provide their medical history so that birth relatives may be able to obtain personal health information.

Adult adoptees and birth parents may continue to place a no-contact notice on their file if they do not want to be contacted. They may also register a notice specifying a contact preference on how they prefer to be contacted.

Ontario Information and Privacy Commissioner Dr. Ann Cavoukian today applauded the government for including a privacy-protective disclosure veto in the new bill. "This disclosure veto will preserve the privacy of a number of deeply concerned birth parents and adoptees, while still allowing the vast majority of birth parents and adoptees to obtain the information they are seeking." The Commissioner is deeply grateful to the Government for making these important changes, allowing the Bill to strike the right balance.

The legislation is consistent with the recent Ontario Superior Court of Justice decision of September 19, 2007 and the views of Ontario's Information and Privacy Commissioner.

Wendy Rowney, president of Adoptions Search and Kinship and a member of the coordinating committee for the Coalition for Open Adoption Records, stresses the importance of this legislation for adult adoptees: "Finally, the vast majority of adult adoptees in Ontario will have access to a historically accurate birth certificate."

"We believe that it is in everyone's best interest to move quickly with these changes," said Meilleur.

"We are committed to helping adoptees and birth parents get as much information as possible - important information about their past."

- Garry J. Wise, Toronto

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Ontario Government to Introduce Amended Adoption Disclosure Law

On September 17, 2007, Ontario's Adoption Information Disclosure Act came in to force. As we reported on September 19, Ontario's Superior Court struck down the new law two days later.

The Act, as originally drafted, would have permitted adoptees to obtain records including their birth names and the names of their birth parents from previously sealed government records. Birth parents would also have been permitted to obtain information from their birth children’s records and adoption orders.

While the original Act provided that both adoptive children and birth parents could register notice that after such disclosure, they did not wish to be contacted by the other (which, if violated, could result in a fine of $50,000), the Act's retroactivity caused serious privacy concerns for persons who had long believed that their personal information would always be maintained by the government on a confidential basis in accordance with prior legislation, long in effect.

Four people, two of whom remain unidentified, launched an action against the Attorney General of Ontario and the Coalition for Open Adoption Records, claiming the Act was unconstitutional.

The matter was heard by Mr. Justice Edward Belaboba in June 2007. In concluding the Act infringed Section 7 of the Charter of Rights and Freedoms, his Judgment focused on two substantive concerns:

1. the retroactivity of the law; and
2. the law did not require the consent of both parties to the release of information.

On November 14, 2007, CBC News reported:

The McGuinty Liberals are taking another run at opening up past adoption records after deciding not to appeal a judge's decision quashing their adoption law.

The revised legislation, which is expected to be introduced imminently, will address Justice Belobaba's ruling by including a provision permitting either party to veto disclosure of personal information to the other.

Information about current rights of adoptees and birth parents is available online from the Ministry of Community and Social Services.

- Annie Noa Kenet, Toronto

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New Ontario Adoption Disclosure Law Struck Down

Ontario Superior Court Justice Edward Belobaba has quashed Ontario's new Adoption Information Disclosure Act, holding that provisons of the Act contravene the Canadian Charter of Rights and Fredoms.

In Cheskes v. Ontario (Attorney General), the Court considered the constitutional validity of provisions that retroactively opened confidential adoption records maintained by the Province, and allowed birth parents and adopted children to access identifying information about each other without the consent of the person being identified.

The new law had been in effect for only two days before this ruling

As noted in this Toronto Star report, the Court struck the statute "because it violates the privacy of adoptees and birth parents who want their records to remain sealed."

National Post also has the story:

Adoptees and birth parents will no longer be privy to the personal information contained in adoption records after Ontario Superior Court Wednesday struck down nascent legislation that allowed past adoption records to be opened. ... Wednesday's ruling, issued by Justice Edward Belobaba, quashed that legislation.

..."The applicants object to the fact that their identities will be disclosed to persons that they would least want to have this information. Whether or not contact actually takes place in breach of the no-contact provision is a secondary concern," he wrote.

The ruling found parts of the legislation dealing with access to birth registration information unconstitutional.

"People expect, and are entitled to expect, that the government will not share [confidential personal] information without their consent," said the court. "The protection of privacy is undeniably a fundamental value in Canadian society, especially when aspects of one's individual identity are at stake."

The full text of Justice Belobaba's adoption disclosure decision in Cheskes v. Ontario (Attorney General is here.

For other press coverage of the decision, see:

• CBC: Adoption law struck down by Ont. court
• CTV: Judge strikes down controversial Ont. adoption law
• Windsor Star: New Ontario adoption law struck down on privacy concerns

- Garry J. Wise, Toronto

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Federal Court Denies EI Maternity Benefits to Adoptive Mothers

Last week, the Federal Court of Appeal ruled against Pattie Tomasson, an adoptive mother of two in British Columbia, whose application for Employment Insurance maternity benefits was originally disallowed by EI.

Tomasson appealed, arguing to the Court that Canada's Employment Insurance plan discriminates against adoptive mothers by failing to granting to them the 15 weeks of maternity leave that biological mothers are entitled to.

The Court’s analysis, which focused on whether the federal employment insurance provision violated adoptive mothers section 15(1) equality rights under the Charter, concluded the following:

The reasonable adoptive mother would no doubt recognize that by reason of the physiological and psychological experience resulting from pregnancy and childbirth, biological mothers are deserving of special benefits so as to accommodate their particular needs. The reasonable adoptive mother would also no doubt recognize that the maternity benefits are essential to protecting the wellbeing of these mothers so that they can, in due course, effectively return to their employment. The reasonable adoptive mother would also recognize that Parliament has considered and recognized her own needs by the enactment of the parental benefits provisions and that she has in no way been excluded from Canadian society. Hence, the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers.

The lengthy judgment further states that if this EI provision violates the rights of adoptive mothers, then it would also violate the rights of fathers, both biological and adoptive. Much emphasis was placed on pregnant women in the employment context explaining that pregnant women should have entitlements to reduce the risk of discrimination in the workplace while allowing them opportunity to have time off should the physical effects of pregnancy require it.

In an article on the Adoptive Families of BC website, Tomasson argues that EI serves a dual purpose: (1) it allows a biological mother time to overcome the physical effects of childbirth and (2) it allows mothers time to bond with the new child. She argues:

I find it to be a reasonable conclusion from the evidence that the large majority of pregnant women defer their leave time until after the delivery of the baby and they do so because of their desire to spend as much time as possible with the baby after the baby’s birth…I am satisfied on the evidence that the time spent by a mother in the first year attaching to its mother is critical to the child’s development.

Tomasson intends to appeal the case to the Supreme Court of Canada.

Currently in Ontario, the Employment Standards Act sets out the rights of parents wishing to take pregnancy and parental leave. The maximum duration of pregnancy leave an employer must provide under the Employment Standard Act is 17 weeks, which must be taken consecutively and can commence as early as 17 weeks before the child’s due date and ends on the child’s actual date of birth. Employment insurance benefits for the child can commence as early as 8 weeks prior to the expected birth date of the child, and as late as 17 weeks following the actual date of birth of the child. An employee taking any or all the time off provided under pregnancy leave is eligible to receive maternity benefits from the federal government employment insurance program for up to 15 weeks at the rate of 55% of their averaged insured earnings for up to a maximum of $413.00 per week.

The maximum duration of parental leave an employer must provide under the Employment Standard Act is 37 weeks. Each parent is entitled to this leave. A biological mother, who has taken maternity leave, is only entitled to 35 weeks of parental leave. Parental leave must be started within 52 weeks of the child’s birth, or if you are an adoptive parent, from the day the child is placed with you. An employee taking any or all the time off provided under parental leave is eligible to receive paternal benefits from the federal government employment insurance program for a maximum of 35 weeks between both parents at the rate of 55% of your averaged uninsured earnings up to a maximum of $413 per week. Therefore, if both parents take paternal leave together, then each parent is eligible for 17.5 weeks of benefits. If the parental leave is taken consecutively, then the first parent is eligible for a 37 week leave with 35 weeks of benefits, and the second parent is still entitled to a 37 week paternal leave from work, but will not be entitled to any more benefits. Parents can choose to allocate the benefits in any manner, but not to exceed 35 weeks of benefits between them.

Further information on employment insurance benefits can be found here. Information on leaves provided pursuant to the Employment Standards Act can be found here.

- Annie Noa Kenet, Toronto

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