Adoption Disclosure Appeal Launched

TORONTO, July 7, 2006 – An appeal has been commenced to the Ontario Court of Appeal of the decision of Madam Justice Eva Frank released June 7, 2006 dismissing D. Marie Marchand’s application to the Superior Court of Justice challenging Ontario’s present adoption disclosure regime.

The initial challenge, commenced in August 2004 against the Ontario Government and the Catholic Children’s Aid Society of Toronto (CCAS), sought a declaration that the regime of sealing adoption records in place since the 1920’s violated the Canadian Charter of Rights and Freedoms.

The application did not challenge the Adoption Information Disclosure Act, 2005 (AIDA) enacted by the Ontario Legislature on November 1, 2005. The AIDA provides that the previously sealed birth records of adoptees will be opened to them in 2007, after the legislation has been phased in. The government asserts that the AIDA strikes a balance between adoptees’ need to know where they come from and the protection of birth parents’ privacy. The phase-in period is intended to allow for public education and to give birth parents and adoptees an opportunity to register contact vetoes and to apply to block disclosure where this is necessary to “prevent sexual harm or significant physical or emotional harm”.

In late May 2005, in response to her court application, the government released to Ms. Marchand her original statement of birth completed by her birth mother as well as certain records kept by the CCAS respecting her life pre-adoption. What has been withheld, however, is the identity of the man that her birth mother, since deceased, identified to the CCAS and to the Court in Crown wardship proceedings as her father. The government has refused to disclose this information because the man denies paternity.

The AIDA and the opening of the sealed birth records will not assist Ms. Marchand because government forms at the time of her birth required only that a husband’s name be entered, with no option for adding the name of a father outside of marriage.

Justice Frank declined to address the regime under the Vital Statistics Act that permits original birth registrations to be sealed and adoptive parents to create substitute registrations leading to the fiction that an adopted child is their natural child. The original registrations are then sealed. While the AIDA does not end this practice, it does provide that the original records can be unsealed once the adoptee reaches the age of majority, subject to certain exceptions.

Ms. Marchand suffers from a number of physical health ailments, including Crohn’s disease, which is a chronic, recurrent inflammatory disease of the intestinal tract. This genetically linked condition was difficult to diagnose due the fact that Ms. Marchand’s family medical history was not disclosed. She has expressed profound disappointment in the ruling that the laws preventing disclosure of the identity of her birth father infringe neither section 7 (life, liberty and security of the person) nor section 15(1) (right to equal treatment) under the Charter. “The need to know my father’s identity is not about knowing who my father is. It is about knowing who I am. At this point, I simply feel invalidated as a human being.”

Ms. Marchand’s lawyer, Marshall Swadron sees the decision as part of a cross-border pattern in adoption disclosure challenges. “Courts in the United States and Canada have refused to interfere with pretty much any adoption disclosure regime that a government has comes up with. This includes laws sealing records and those that provide for open records. Fortunately the trend is toward openness.” In explaining the decision to pursue the challenge even after the AIDA became law, he added “while the new law is a step in the right direction, nothing prevents a government from reversing itself.” In fact, Ontario’s opposition leader John Tory is on record as opposing open records.

The notice of appeal alleges that Justice Frank made numerous errors in reaching her decision, including that she rejected the evidence of experts who testified that knowing one’s ancestry is fundamental to individual liberty and dignity. The judge instead favoured the evidence of the government’s expert who characterized the desire to know the identity of one’s birth parents as mere curiosity on the part of adopted persons.

The full text of the decision may be found here. For more information, please contact Marshall Swadron or Kelley Bryan at 416-362-1234.