Adoption Disclosure Hearing Today

TORONTO, February 1, 2006 – A test case challenging Ontario’s adoption disclosure laws will be heard today at 10:00 a.m. in the Superior Court of Justice at Toronto. The precise courtroom location will be posted in the morning by the elevators at the court office on the 10th Floor at 393 University Avenue.

D. Marie Marchand, a non-practising lawyer, brought the application against the Ontario government and the Catholic Children’s Aid Society of Toronto (CCAS) in August 2004. Using the name Infant Number 10968, the identifier placed on her adoption order, she challenges Ontario’s legislation that keeps adoption information confidential even from the adoptees themselves.

This case has important implications for all members of the adoption triad (adopted persons, birth parents and adoptive parents). Under the present regime, adoptive parents are permitted to create substitute birth registrations giving the appearance that the adopted child is their natural child. The original records are then sealed. Persons who are adopted (assuming that they discover the fact) must use an administrative process to obtain information respecting their parents. If the birth parents do not consent or refuse to acknowledge parenthood, information may never be disclosed.

The court challenge asserts that the adoption provisions of the Child and Family Services Act and the Vital Statistics Act offend the individuals’ rights to security of the person and equality under the Canadian Charter of Rights and Freedoms.

Ms. Marchand suffers from Crohn’s disease, which is a chronic, recurrent inflammatory disease of the intestinal tract. This is a genetically linked condition that Ms. Marchand has had trouble diagnosing and treating due the fact that her family’s social and medical history has been kept secret from her. “My innocent childhood question of Where do I come from? was a forbidden subject, evoking an often violent response from my adoptive mother. Why must we continue to add vinegar to the wound by concealing this information?” asks Ms. Marchand.

Ms. Marchand’s lawyers are Marshall Swadron and Kelley Bryan of Swadron Associates. Swadron notes that “historic justifications have included the need to protect adoptive parents from blackmailers and to thwart the fictional spectre of vengeful birth mothers. While persons seeking anonymity may have benefited from these laws, the rights of those most affected by adoption, the adopted persons themselves, were never considered.” Expert evidence filed with the court shows how the withholding of information causes adoptees, who are over-represented in mental health care, emotional and psychological harm.

On November 1, 2005, Bill 183, the Adoption Information Disclosure Act, 2005, was passed by the Ontario Legislature. The Act is touted by the government as balancing the right to know with the protection of privacy. The transition to the new regime will take 18 months to allow for public education respecting the new legislation. During this period, birth parents and adoptees may seek to block disclosure to "prevent sexual harm or significant physical or emotional harm". The legislation also provides for the filing of contact vetoes by birth relatives and imposes significant fines if they are breached.

Ms. Marchand agrees that any law that opens more records to adoptees is a step in the right direction but feels that the legislature’s compromise still falls short of what is needed. The provisions that permit adopting parents to re-register births and seal original records remain untouched. Exemptions from disclosure and contact vetoes serve to stigmatize birth parents and adoptees. “In effect, we have the same regime as before but the burden has shifted from the person seeking access to records to the person seeking to block disclosure," says Swadron.

Through the application, Ms. Marchand has obtained her original statement of birth completed by her birth mother and certain records kept by the CCAS respecting her life prior to her adoption. A crucial item of information that remains elusive, however, is the identity of her birth father. Although her birth mother, since deceased, gave his name to the CCAS and to the Court in Crown wardship proceedings, he has denied paternity. The new legislation will not assist because government forms at the time of Ms. Marchand’s birth required only that a husband’s name be entered, with no option for adding the name of a father outside of marriage.

Ms. Marchand views the withholding of information abut herself that is located in government files as an unjustified restriction. “Until this is released, I will still be asking, Where do I come from? This is information that non-adopted persons take for granted. Every passing day that the government withholds this information is a reminder that they consider me less worthy as a human being.”