The Ontario government has made changes to adoption disclosure legislation in an effort to balance an adoptee or birth parent’s right to privacy with the demand for disclosure.
In May, 2008 Ontario introduced new adoption disclosure legislation allowing adopted adults and birth parents to obtain information from birth and adoption records for adoptions that were finalized in Ontario, including information that will identify adoptees and their birth parents.
As of September 1, 2008, adopted adults and birth parents can file disclosure vetoes, provided that the adoption order was made before September 1, 2008. The veto will block the release of any identifying information. A no-contact notice can also be filed by adoptees and birth parents who do not want biological relatives to contact them.
Adopted adults will be able to apply for copies of their adoption orders and birth registrations as of June 1, 2009. Birth parents will be able to apply to obtain information contained in these documents as of the same date. The gap in time is intended to allow adopted adults and birth parents sufficient time to apply for disclosure vetoes before the records are made available.
These changes have come after a the Ontario Government’s recent failed attempt to change adoption disclosure legislation in 2005 with the introduction of the Adoption Disclosure Information Act (Bill 183). This legislation would have introduced changes to the Vital Statistics Act that would allow adopted people and their birth relatives to obtain identifying information about each other.
Under the old law, adoption information could only be disclosed to adoptees or birth parents with the consent of both parties unless there were health or safety reasons that justified the disclosure. Under Bill 183, personal identifying information would be disclosed without the consent and even contrary to the wishes of the affected adoptee or birth parent.
One of the most controversial provisions in Bill 183 was that the disclosure was retroactive, such that adult adoptees and their birth parents would be identified even in cases where the adoption took place before this kind of disclosure was ever contemplated. Many adoptees and birth parents argued that this was a violation of their privacy. On November 3, 2005, Bill 183 received Royal Assent and became law. The law was scheduled to become effective in 2007.
In 2007 in the case of Cheskes v. Ontario (Attorney General), four applicants (three adoptees and one birth parent) challenged the constitutional validity of the Adoption Information Disclosure Act on the basis that it violated section 7 of the Canadian Charter of Rights and Freedoms.
According to the Honourable Justice Belobaba’s reasons, the applicants, “lived their lives to date on the assumption that their birth and adoption records would remain confidential and would not be ‘retroactively’ opened, revealing their personal identifying information without their permission.”
The applicants were successful and the legislation was declared unconstitutional.
The Ontario government set to work redrafting the legislation and in May, 2008 the Ontario legislature passed the Access to Adoption Records Act, 2008. The new legislation provides for the disclosure of identifying information, while at the same time allowing for birth parents and adoptees whose adoptions took place prior to September 1, 2008 to file the disclosure vetos to protect their privacy.
Dated: November 2008