Province Backtracking on Open Adoption Records

TORONTO, June 6, 2005 – Ontario's Bill 183, designed to open adoption records, has stalled after second reading. As the Legislature's summer recess approaches, the government's stated goal of passage by June appears increasingly unlikely to be met.

The bill, which responds to the demands of many adoptees whose birth records were sealed when their adoptive parents re-registered them with new identities, has faced opposition from, among others, Ontario's Information and Privacy Commissioner, Ann Cavoukian.

Minister of Community and Social Services, Sandra Pupatello has proposed amendments intended to serve as a compromise. Birth parents who can establish that they will suffer physical or emotional harm if their identities are disclosed to their biological children will be permitted to block disclosure. This move appears to have displeased both sides of the debate. Asserting that birth parents acquire a right of privacy as against the children that they give up for adoption, Cavoukian, interviewed here on CBC, has complained that those seeking to block disclosure should not have to prove anything.

Arguing in favour of open records, Marshall Swadron points to the fact that biological parents have never enjoyed a right to keep their identities secret from their children who are adopted in Ontario. "It has been up to the adopting parents to decide whether they want to re-register adopted children and seal the original birth records" says Swadron. "Any promises of confidentiality made by adoption agencies to birth parents were made without legal authority. If the adopting parents took no steps to seal the records, they remain open today."

Swadron Associates represents Donna Marie Marchand in her challenge to Ontario's current regime that permits re-registration and sealing of original birth records. Ms. Marchand has recently learned, after a 20-year struggle to obtain her original birth records, that the records were never in fact sealed. This leads Swadron to caution against any regime that places discretion respecting whether to disclose records in the hands of a government agency. "No matter how clearly in favour of disclosure the law may be, the existence of discretion to keep records sealed will lead to abuses. In Ms. Marchand's case, the records were never even sealed and the people running the ADR [Adoption Disclosure Register] managed to keep them from her for two decades."

Ms. Marchand's application is scheduled to be heard in the Superior Court of Justice in early February 2006. Based on the delays and proposed amendments to Bill 183, new legislation may or may not be in place by that date. Please click here to read more about the open records challenge brought by Ms. Marchand. To read the government's press release issued on March 29, 2005 when it introduced its open records legislation, please click here.