Wednesday, December 28, 2005

Court Case - Adoption Records

DM Marchand


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Court file number: 04-CV-274248CM2



ONTARIO

SUPERIOR COURT OF JUSTICE


BETWEEN:



INFANT NUMBER 10968, also known as

D. MARIE MARCHAND



Applicant

and





HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO



Respondents



Application under Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
C.11





APPLICANT'S FACTUM


PART I - PARTIES AND THE NATURE OF THE APPLICATION
1. The applicant Infant Number 10968, also known as D. Marie
Marchand (the applicant), was adopted in Ontario. She seeks all information
available respecting her birth and family history - the same information that
people who are not adopted take for granted. She seeks the answer to her
lifelong question of "Where did I come from?".

2. The respondents Her Majesty the Queen in Right of Ontario
(the Crown) and the Catholic Children's Aid Society of Toronto (CCAS) hold the
information the applicant seeks. They have, through a combination of
legislation and practice, prevented the applicant from obtaining it.

3. The applicant seeks declaratory relief and personal remedies
including access to records. Other relief sought, including damages, has been
deferred to be addressed in separate proceedings after the disposition of the
application.

PART II - OVERVIEW

4. The hallmark of Ontario's adoption disclosure regime is
secrecy. When a child is adopted, the state establishes the irrevocable legal
fiction that adoptive parents are biological parents and, from that moment on,
the adopted person is placed on a different plane from all other members of
Canadian society. The Vital Statistics Act (VSA) allows the Registrar General
to replace the child's birth registration with a substitute registration showing
that she was born to the adoptive parents. Where a substitute registration is
created, the VSA mandates the sealing of the adopted person's original birth
files, thereby preventing the adopted person from ever accessing that
information. Even where an adopted person's files are not sealed, the Registrar
General nevertheless treats the file as if it were sealed and will not release
information.

5. The Child and Family Services Act (CFSA) establishes
mechanisms for the release of identifying and non-identifying information to
members of the adoption triad (adopted persons, birth relatives and adoptive
parents). Identifying information may be released where the adoptee and the
birth relative consent. The requirement of mutual consent gives a private
person the power to control the information that another person can learn about
himself, even where such information may be crucial to the other person's
self-realization and identity formation. The Registrar of Adoption Information
retains discretion to override the withholding of consent on "health, safety or
welfare" grounds but this is rarely exercised and can even be overridden by a
refusal to consent to disclosure.

6. An adoptee or birth relative can ask the Adoption Disclosure
Unit (ADU) to make a search for birth relatives. Searches may take years,
however, and even if a search is successful, information is disclosed only if
the birth relative consents and then only after mandatory counselling by a state
agent. The ADU currently allows each adopted person or birth family member to
search for a single birth relative. Second requests are not being processed.

7. Adoption experts and the overwhelming body of clinical
research indicate that adoptees need to know their origins. This need is deeply
felt and psychologically important and adoptees who are barred from accessing
information about themselves are condemned never to fulfill this need. In the
case at Bar, the applicant has spent the prime of her life searching for her
identity to restore her human dignity. This is not a case about the right of
adopted persons to know their birth parents. It is about their right to know
themselves.

8. The applicant submits that the combined effect of the
secrecy provisions of the CFSA and the VSA is to unjustifiably infringe upon the
fundamental rights of adopted persons, particularly their rights under sections
7 and 15 of the Charter of Rights and Freedoms (Charter). The applicant applies
under section 24(1) of the Charter and section 52 of the Constitution Act, 1982
for declarations of invalidity and personal remedies arising from breaches of
the Charter.

9. This application was commenced in August 2004. In November
2005, the government enacted the Adoption Information Disclosure Act, 2005,
which is scheduled to come into force in 2007. It is addressed herein but it
does not affect the relief sought.

PART III - FACTS
State regulation of adoption in Ontario

10. The practice of adoption dates back to ancient times.
According to Sir Henry Maine, adoption is one of the oldest and most widely used
of legal fictions. Historic adoption was designed to serve the needs of the
adoptive parents, for instance by perpetuating male lineage in the family or to
secure someone to care for the adoptive parents during their old age.

Katrysha Bracco, "Patriarchy and the Law of Adoption: Beneath the Best Interests
of the Child" (1997) 35 Alta. L. Rev. 1035 at pages 2 to 3 and 5

11. In Ontario, adoption was not regulated by the state until the
early 1920s. Prior to that time, children were adopted by relatives or through
arrangements made by churches or other private organizations. Birth records
were not changed after a child's adoption and the state did not concern itself
with ensuring secrecy. Most Canadian provinces enacted adoption legislation
after the First World War, when large numbers of infants and children were
orphaned by the war or left homeless after illegitimate births. In 1921,
Ontario passed the first Adoption Act, thereby bringing adoption out of the
private realm and under government oversight. That Act conferred upon judges
the power to make adoption orders extinguishing the birth parents' rights
respecting the child and making the child "for the purposes of the custody of
the person and rights of obedience, to all intents and purposes the child of the
adopting parent". As described by one author, this Act "introduced the
statutory death of biological parents and the rebirth of the adoptee". Judges
had discretion to give the adopted child the surname of the adoptive parent by
way of the adoption order. The Adoption Act provided that adoption applications
would be heard in chambers, but did not otherwise impose secrecy over adoption
or records.

Adoption Act, S.O. 1921, c. 55, section 10

Katrysha Bracco, "Patriarchy and the Law of Adoption: Beneath the Best Interests
of the Child", supra

Shirley K. Senoff, "Open Adoptions in Ontario and the Need for Legislative
Reform" (1998) 15 Can. J. Fam. L. 183-214 at paragraphs 12 and 13

Jenny Keating, "Struggle for Identity: Issues Underlying the Enactment of the
1926 Adoption of Children Act" (2001) University of Sussex Journal of
Contemporary History 3

12. The second Adoption Act, passed in 1927, introduced
restrictions upon the disclosure of information about adoption. This statute
followed close on the heels of the first adoption legislation in England, which
imposed similar conditions of secrecy upon adoptions.[1] Under the Ontario law,
papers used in an adoption application were sealed and not open for inspection
except with leave of a judge or appointed provincial officer. Unless ordered
otherwise, the adoption order changed the child's surname to that of the
adoptive parent. Judges could also change the child's given name by way of the
order. Adoption orders were transmitted to the Registrar-General under the
Vital Statistics Act, who would then mark the child's birth registration with
the word "ADOPTED". Birth registrations were not sealed, however. If a birth
certificate was requested after the adoption, nothing prevented it from being
issued in accordance with the information in the child's birth registration.

Adoption Act, R.S.O. 1927, c. 53, sections 6(1), 9(3) and section 12

Vital Statistics Act, R.S.O. 1927, c. 78

13. In 1948, the Vital Statistics Act was amended to add a further
layer of secrecy. Upon receipt of an adoption order, the Registrar-General made
a notation of the adoption and change of name on the child's birth registration.
If a birth certificate was thereafter requested for the child, the
Registrar-General would issue a birth certificate in the changed name, as if the
child had been born to the adoptive parents. The original birth registration
was not sealed and any person (even a child under the age of majority) could
request a search for adoption and birth records, but the only information
released on such searches was the existence of the registration and the
registration number.

Vital Statistics Act, R.S.O. 1948, c. 97, sections 24, 43

14. In 1954, the Adoption Act was repealed and adoption became
regulated under the Child Welfare Act, the precursor to today's CFSA. As
before, upon the adoption order being made, the child would by default assume
the surname of the adoptive parent. Adoption applications were heard in
chambers and the papers used thereon were sealed, subject to leave of the court.
Adoption orders were transmitted to and maintained by the Registrar-General
under the Vital Statistics Act.

Child Welfare Act, S.O. 1954, c. 8, Part IV, sections 66, 77, 81

15. The historical development of legal secrecy in the area of
adoption records was underpinned by social norms of the time: the treatment of
children as property, the criminalization of abortion, the shame of a woman
giving birth out of wedlock, the stigma of illegitimacy, and the disgrace of
infertility for adoptive parents. Adoption was also touted as the preferred
solution to an unplanned pregnancy. Unmarried mothers often had no choice but
to relinquish their babies, either because of the social stigma or due to lack
of state economic support for single mothers.[2] It was in this context that
the sealing of records spread rapidly in North America after World War II.

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, page 309

Anne Petrie, Gone to an Aunt's, pages 1 to 3 Application record, volume 2, tab
5C, pages 414 to 415

Ferguson v. Director of Child Welfare (1983), 40 O.R. (2d) 294 (Co. Ct.),
affirmed (1984), 44 O.R. (2d) 78 (C.A.)

Cross-examination of Jerome Smith held on November 2, 2005 (Smith transcript),
page 25, lines 4 to 22 and page 46, lines 1 to 24 Transcript brief, tab D

16. In the United States, laws sealing adoption records were
imposed for the additional purposes of preventing the real phenomenon of
extortionists using information from open court files to blackmail wealthy
adoptive parents and the apparently imagined one of dispossessed birth mothers,
unable to overcome their maternal instincts, from tracking down their children.

Cross-examination of E. Wayne Carp held on November 15, 2005 (Carp transcript),
page 84, line 24 to page 86, line 8 Transcript brief, tab I

17. This trend toward secrecy in the 20th century was not
universal. For example, when the first adoption legislation was passed in
Scotland in 1930, it allowed for adoptees, when they reached the age of
seventeen, to have access to their original birth certificates, which identified
their birth mothers.[3] A replacement birth certificate could be issued in
Scotland after an adoption in the child's adoptive name, but listed the adoptive
parents under "names of the adopters", thereby avoiding creating the fiction
that the child is the biological child of the adoptive parents.

B.J. Lifton, Journey of the Adopted Self: A Quest for Wholeness (New York: Basic
Books, 1994) Application record, volume 1, tab 3C, page 192

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, page 326

18. During this era, some adoption agencies enticed birth mothers
to relinquish their children for adoption by telling them that their identities
would always be kept confidential. These promises were never made in writing
and, as the Crown witnesses on this application admit, had no legal authority
behind them. They were motivated in part by adoption agencies' business goals.

Carp transcript, page 67, lines 15 to 19; page 86, lines 9 to 16 Transcript
brief, tab I

Cross-examination of Margaret O'Reilly held November 8, 2005 (O'Reilly
transcript), page 34, line 25 to page 35, line 4 Transcript brief, tab G

Cross-examination of Lynda MacInnes held November 14, 2005 (MacInnes
transcript), page 51, lines 3 to 11 Transcript brief, tab H

The applicant's birth, registration and adoption

19. The applicant was born on October 5, 1955 in Toronto and named
Nida Marie Fortune by her mother, Alice Victoria Fortune (Alice). The
applicant's mother was of mixed First Nations and French origin.

Affidavit of applicant sworn June 3, 2004 (applicant's affidavit), paragraphs 2,
17 and 43 Application record, volume 1, tab 2, page 10, 13 and 18

Amended statement of birth produced May 31, 2005 Application record, volume 2,
tab 5A, page 399

Affidavit of applicant sworn June 29, 2005 (applicant's supplementary
affidavit), paragraph 19 Application record, volume 2, tab 5A, page 394

20. The applicant's birth was registered on October 14, 1955 in
accordance with the Vital Statistics Act then in force. The original birth
registration names the applicant's mother but records no information in the
section entitled "Particulars of Husband".[4] Alice was aware of the identity
of the applicant's father, however, and named him without hesitation to child
welfare authorities.

Vital Statistics Act, R.S.O. 1950, c. 412, as amended by S.O. 1954, c. 101

Amended statement of birth produced May 31, 2005 Application record, volume 2,
tab 5A, page 399

Applicant's affidavit, paragraphs 41 and 45 Application record, volume 1, tab
2, pages 17 and 18

Affidavit of Judith Hartman sworn May 31, 2005 (Hartman affidavit), paragraph 2
Application record, volume 3, tab 11, page 894

21. Feeling that she needed some time to get established so that
she could care for her baby, Alice contacted the CCAS after the applicant was
born, seeking temporary wardship. Subsequently, for reasons that the
respondents have not disclosed, Alice consented on January 9, 1956 to the
applicant becoming a permanent Crown ward, thereby making the applicant eligible
for adoption. In the course of the Crown wardship hearing, Alice again named
the applicant's birth father and issued a declaration of paternity.

Applicant's affidavit, paragraph 6 Application record, volume 1, tab 2, page 11

Family social history prepared by the CCAS dated July 1989 Application record,
volume 1, tab 2H, page 50

Family social history prepared by the CCAS dated June 1999 Application record,
volume 1, tab 2K, page 70

MacInnes transcript, page 116, line 22 to page 117, line 6 Transcript brief,
tab H

22. When she was five months old, the applicant was placed with her
adoptive parents, Joseph Amedee Marchand (Amedee) and Mary Doreen Marchand
(Doreen). The adoption was concluded by an adoption order made on May 30, 1957,
in which the applicant was assigned infant number 10968. The applicant's
adoptive parents called her Donna Marie Marchand. As required by section 24 of
the Vital Statistics Act, a notation of the adoption and change of name was made
on the applicant's original birth registration. The applicant's adoptive
parents applied for a short form birth certificate (a wallet-sized card), which
was issued in the applicant's changed name, in accordance with section 24(4) of
the then Vital Statistics Act.

Adoption order Application record, volume 1, tab 2A, page 29

Birth certificate of applicant Application record, volume 1, tab 2B, page 31

Hartman affidavit, paragraph 2 Application record, volume 3, tab 11, page 894

Vital Statistics Act, R.S.O. 1950, c. 412, as amended by S.O. 1954,
c. 101

23. The Child Welfare Act and Vital Statistics Act were both
amended in 1958. For the first time, the Registrar-General under the Vital
Statistics Act, upon receiving an adoption order and a subsequent application
for a birth registration, had the power to "set aside" a child's original birth
registration and create a substitute registration of birth to establish the
legal fiction that the adoptive parents were the biological parents of the
child. Where a substitute registration was made, the original registration was
withdrawn by the Registrar-General and sealed. If a birth certificate was
subsequently requested, it would be issued in accordance with the substitute
registration of birth. The legislative regime of substitute registration and
complete opaqueness[5] would continue, without material change, for the next 20
years.

An Act to Amend the Child Welfare Act, S.O. 1958, c. 11

An Act to Amend the Vital Statistics Act, S.O. 1958, c. 122, section 2

Vital Statistics Act, R.S.O. 1960, c. 419, section 25

Vital Statistics Act, R.S.O. 1970, c. 483, section 24

24. The applicant's adoptive parents did not apply for a substitute
registration of her birth. Therefore, her original birth registration was never
sealed. Had the applicant's adoptive parents requested a long-form birth
certificate in respect of the applicant after 1958, however, a substitute
registration would have been created showing them as the applicant's biological
parents and the original registration would have been sealed.[6]

Hartman affidavit, paragraphs 3 and 4 Application record, volume 3, tab 11, page
895

Treatment of adoption in the applicant's youth

25. The applicant suffered psychological trauma stemming from the
secrecy surrounding her adoption. While it was an open secret in her adoptive
family and the community that the applicant was adopted, no one acknowledged the
fact of her adoption to her and she was not allowed to ask questions about it.
The atmosphere was at best confusing, and at worst crippling to her
psychological development and sense of identity.

Applicant's affidavit, paragraphs 15 to 17 Application record, volume 1, tab 2,
pages 12 to 13

26. When the applicant was a young child, her adoptive cousins told
her that she was adopted and teased her about her adoption. When the applicant
asked Doreen what "adopted" meant, Doreen, who was herself adopted, beat the
applicant and told her that she should not ask such questions and that she was
an ungrateful, "dirty little girl". From that point forward, the applicant was
afraid to ask questions related to adoption. Amedee would comment that the
applicant's father was a rollerskater or otherwise make comments that hinted she
was adopted, but the applicant was afraid to probe for further information for
fear of adverse consequences.

Applicant's affidavit, paragraphs 15, 16 and 21 Application record, volume 1,
tab 2, pages 12 to 14

27. The applicant knew that she looked different from her adoptive
parents but had no way of finding out about her racial background. Other
children teased her and called her "squaw" or "half-breed". Her adoptive
grandmother would make racist remarks about aboriginal persons in the
applicant's presence.

Applicant's affidavit, paragraph 17 Application record, volume 1, tab 2, page
13

28. Amedee died in 1982. In 1983, the applicant located her
adoption order in her adoptive parents' house.[7] This fuelled her need to find
out about her identity.

Applicant's affidavit, paragraph 24 Application record, volume 1, tab 2, page 14

29. Doreen died on July 14, 1993 and the applicant's adoptive
grandmother died on May 13, 1995. During their lifetimes, neither of her
adoptive parents nor her adoptive grandmother ever discussed directly with the
applicant the circumstances of her birth or her adoption.

Applicant's affidavit, paragraphs 23 and 24 Application record, volume 1, tab 2,
page 14

30. Seeking approval from her adoptive family, the applicant put
enormous pressure on herself to succeed. She achieved a double honours degree
in social-cultural anthropology and women's studies and a law degree from the
University of Toronto. She completed her articles of clerkship with the
Constitutional Law and Policy Branch at the Ontario Ministry of the Attorney
General before being called to the Bar of Ontario in 1996. The applicant has a
strong record of community activism and is, among other things, a recording
artist, songwriter and instrumentalist.

Applicant's affidavit, paragraphs 26 to 30, 33, 34 and 36 Application record,
volume 1, tab 2, pages 15 to 17

The applicant's search for her birth records

31. In the late 1970s, the legislative pendulum began its swing
towards openness in adoption records. The Child Welfare Act was amended in 1978
to create the first Ontario adoption disclosure registry (ADR). Adult adopted
persons and birth parents could apply to be named in a registry maintained by
the Ministry of Community and Social Services. If an adoptee and a birth parent
were both registered, the Ministry would seek consent from both persons and also
from the adoptive parents. If all of the required consents were obtained, the
Ministry would release to the adoptee and birth parent the information contained
in the ADR and in the documents used in the application for an adoption order.
This type of registry is known as a "passive" registry, meaning that all parties
are required to register their consent for disclosure before a "match" can be
made.[8] Despite this step toward openness, the Vital Statistics Act continued
to provide for the creation of a fictional birth registration and the sealing of
the original. Even if an adoptee had obtained disclosure under the ADR, she
would not be able to obtain a birth certificate reflecting information in the
original birth registration where a new registration had been made.

An Act to Revise the Child Welfare Act, S.O. 1978, c. 85, sections 80 and 81

Vital Statistics Act, R.S.O. 1980, c. 524, section 24



32. Prior to 1981, the applicant was psychologically and
emotionally unable to begin the search for her birth records because she felt
that this represented a betrayal of her adoptive family. The applicant's formal
search for information respecting her birth parents began in earnest in 1984,
however, and has spanned the prime of her life.

Applicant's affidavit, paragraph 37 Application record, volume 1, tab 2, page
17

Applicant's supplementary affidavit, paragraphs 2 and 3 Application record,
volume 2, tab 5, page 390 to 391

33. On August 1, 1984, the applicant first registered with the ADR.
Neither of the applicant's birth parents were registered and therefore no
"match" occurred at that time.

Applicant's affidavit, paragraph 37 Application record, volume 1, tab 2, page
17

Affidavit of Lynda MacInnes sworn on May 31, 2005 (MacInnes
affidavit), paragraph 23 Application record, volume 4, tab 13, page 1067

34. In 1985, the Ontario government appointed a Special
Commissioner, Dr. Ralph Garber,[9] to make recommendations regarding the
disclosure of adoption information. Dr. Garber's report recommended greater
access to identifying and non-identifying information for members of the
adoption triad, and concluded that an active search system should be established
by the ADR. As a result of the Garber report, the Ontario Legislature passed
The Adoption Disclosure State Law Amendment Act, 1987, which amended the CFSA
essentially to its present form. The statutory regime is described in more
detail below, but generally created an active search system whereby adoptees and
certain categories of birth relatives (expanding the earlier limitation of only
birth parents) could be located even in the absence of registration in the
passive registry and identifying information could then be exchanged if both
persons consented. Dr. Garber's most prescient recommendation, however, was
that adult adoptees be permitted access to identifying information respecting
their birth parents even in the absence of birth parents' consent.[10] This
recommendation was rejected by Minister John Sweeney on the basis that it would
be "impractical to distinguish between access to identifying information about
birth parents and potential reunion with them" and therefore "not sufficiently
protect birth parents' confidentiality and privacy."

Disclosure of Adoption Information, Report of the Special Commissioner, Ralph
Garber, D.S.W., November 1985 (Garber report) Application record, volume 4,
tab 12A, page 909

Ontario's New Adoption Policy, The Honourable John Sweeney, Minister of
Community and Social Services, June 1986, at page 9 Application record, volume
4, tab 12B, page 953

Police and Guidelines for the Disclosure of Adoption Information, The Honourable
John Sweeney, Minister of Community and Social Services, February 1988, at page
i Application record, volume 4, tab 12B, page 996

35. In July 1987, the ADR sent a letter to all registered persons
advising of the legislative changes that would allow for active searches. The
applicant received that letter but did not receive the search application forms
which it indicated were enclosed. At around that time, she requested search
forms by telephone from a representative of the ADR, but never received the
forms. She was subsequently told that her file had been made dormant in or
around 1987, purportedly because the ADR could not locate her (despite the fact
that she was at all times listed in the telephone book and the ADR had access to
government records, including her continuously current driver's license
registration).

Applicant's affidavit, paragraph 39 Application record, volume 1, tab 2, page
17

MacInnes affidavit, paragraph 24 Application record, volume 4, tab 13, page
1067

Applicant's supplementary affidavit, paragraphs 15 and 16 Application record,
volume 2, tab 5, page 393

36. In 1989, a group named Parent Finders, with which the applicant
was involved, requested the non-identifying social history of the applicant's
birth mother and the applicant from the CCAS. These social histories are
documents compiled from information in children's aid society files, and provide
information such as physical descriptions, medical information, ethnicity,
religion, and non-identifying family background descriptions. The CCAS does not
make any efforts to confirm the veracity or accuracy of the information provided
to it, nor does it compel birth relatives to give any information that they do
not wish to give.

Applicant's affidavit, paragraph 41 Application record, volume 1, tab 2, page
17

Cross-examination of D. Marie Marchand held October 24, 2005 (Marchand
transcript), page 18, line 12 to page 20, line 21 Transcript brief, tab B

O'Reilly affidavit, paragraphs 11 to 14 Application record, volume 3, tab 8,
pages 655 to 657

37. From the applicant's case history, she learned that her mother
met her father at a rollerskating rink in November 1954. Her parents saw each
other frequently before her mother rented a room for eight months in his
parents' home. She became pregnant but the applicant's paternal grandparents
apparently wanted the pregnancy kept secret. There was no information about
when the relationship ended, nor was there information about her mother or
father's ethnicity. The incompleteness of the record was a source of pain and
frustration to the applicant.

Applicant's affidavit, paragraph 41 Application record, volume 1, tab 2, page 17

O'Reilly affidavit, paragraphs 11 to 14 Application record, volume 3, tab 8,
pages 655 to 657

38. In 1998, two years after the death of all nuclear members of
her adoptive family, the applicant felt that she was free to renew her search
for her birth relatives. She contacted the Adoption Disclosure Unit (ADU),
completed a search request form and sent it to the ADU. The ADU began a search
for her mother, which took eight months to complete. In 1999, a manager at the
ADU told the applicant in a telephone conversation that the applicant's mother
had died on August 31, 1973 of an overdose. At 44 years of age, the applicant
learned her mother's name for the first time, at the same moment as she learned
of her mother's death. The ADU then began a search for the man named in the
applicant's adoption file as her birth father.

Applicant's affidavit, paragraphs 24 and 43 Application record, volume 1, tab
2, pages 15 and 18

Letter from Adoption Disclosure Unit dated April 15, 1999 Application record,
volume 1, tab 2J, page 57

Adoption Disclosure Unit notes to file respecting the applicant in 1998
Application record, volume 3, tab 13C, page 1082

Search information form from applicant received August 25, 1998, Application
record, volume 3, tab 13D, page 1085

39. Because the applicant's mother was dead, the ADR directed the
CCAS to release identifying information about Alice to the applicant. The CCAS
produced a second set of social histories about Alice and sent them to the
applicant in June 1999. This set contained identifying information about Alice
and Alice's family and revealed that Alice and her three siblings had been made
temporary wards of the CCAS in 1942 and permanent wards in 1947. It also
contained more detailed information about the relationship between the
applicant's birth parents and the reason for the adoption.

Applicant's affidavit, paragraph 45 Application record, volume 1, tab 2, page 18

MacInnes affidavit, paragraphs 28 and 29 Application record, volume 4, tab 13,
pages 1068 to 1069

40. On June 22, 1999, an ADR manager telephoned the applicant to
inform her that the ADR had contacted the individual named in her adoption file
as her father. The ADR stated that the individual had denied paternity, did not
acknowledge knowing Alice and did not consent to the release of identifying
information. At the time of this outreach, an ADR counsellor spoke for about
one hour with this man. The counsellor noted that several biographical details
matched between this man and the man named in the file as the applicant's
father. Despite his denial, the counsellor believed this was the man named by
Alice as the applicant's father.

Applicant's affidavit, paragraph 46 Application record, volume 1, tab 2, pages
18 to 19

"Closing Note", Transcript brief, tab N

41. At that time, the ADR also informed the applicant that it had
located her maternal uncle some six months earlier, during its search for her
mother, but was only then releasing his contact information to her. The
applicant contacted her maternal uncle, John, and met a biological relative for
the first time. He was the first person to confirm that she was of aboriginal
heritage.

Applicant's affidavit, paragraph 48 Application record, volume 1, tab 2, page 19

MacInnes affidavit, paragraph 30 Application record, volume 4, tab 13, page
1069

42. Since the 1970s, the applicant's health had been deteriorating.
During this time, she lacked access to information respecting medical conditions
that affected her birth relatives. She endured almost thirty years of pain and
bleeding in her rectum and was diagnosed with Crohn's disease in 1975 and with a
rectal fisula in 1988, both of which required surgical intervention and led to
lasting incontinence. She had been grinding her teeth since she was a child,
primarily due to her anxiety over the lack of truth in her life, eventually
necessitating extensive remedial dental procedures. In addition to her various
physical problems, she has required the care of therapists since 1975 to address
deep-seated issues of depression, stress and loneliness. One psychiatrist
diagnosed the applicant with post-traumatic stress disorder due to the fact that
her efforts to gain access to her birth records had been repeatedly defeated.
The applicant found herself paralyzed by the walls imposed by the adoption
disclosure regime to such an extent that she was unable to pursue any of the
careers for which she was qualified.

Applicant's affidavit, paragraphs 60 to 74 Application record, volume 1, tab 2,
pages 22 to 24

43. Between 1999 and 2004, the applicant made three requests to the
ADR for the release of identifying information about her father pursuant to the
"health, safety or welfare" provisions of the CFSA. Those provisions permitted
the release of identifying information without the birth parent's consent if, in
the Registrar of Adoption Information's opinion, disclosure was necessary to
protect the adoptee's or another person's health, safety or welfare. Release
could occur, for instance, in life-threatening situations or to aid in the
treatment of severe psychological or emotional dysfunction related to the
adoption.

Policy and Guidelines for the Disclosure of Adoption Information Application
record, volume 4, tab 12D, pages 1034 to 1034R

44. The applicant's requests for disclosure of her father's
identifying information pursuant to the health, safety and welfare provisions
were supported by letters from physicians stating that the applicant was,
variously, suicidal, desperate to know the identity of her father, depressed,
suffering from severe anxiety, craving information respecting her identity, and
afraid that, as in the case of her mother, her father would also die before she
found out who he was. One doctor wrote that "any further denial of this
information is...an exercise of willful recklessness to Ms. Marchand and her
well being." Her physicians and therapists opined that access to her birth and
adoption records would allow the applicant to work through the debilitating
grief she carries.

Applicant's affidavit, paragraphs 55 and 56 Application record, volume 1, tab
2, pages 20 to 21

Health, safety and welfare form completed by Dr. Hirsz dated June 28, 1999
Application record, volume 4, tab 13H, page 1095

Letter from the ADU to applicant dated August 30, 1999 Application record,
volume 4, tab 13I, page 1098

Health, safety and welfare request from Dr. David Conroy to the ADU dated May 1,
2003 Application record, volume 4, tab 13L, page 1115

Letter from the Registrar of Adoption Information to Dr. Conroy dated July 3,
2003 Application record, volume 4, tab 13M, page 1118

Health, safety and welfare request from Dr. Westerhoof to the ADU dated December
15, 2004 Application record, volume 4, tab 13N, page 1121

Letter from Registrar of Adoption Information to Dr.
Westerhoff dated January 7, 2005 Application record, volume 4, tab 13O, page
1123

45. Nevertheless, the ADU consistently refused to release
identifying information to the applicant about the person named in the adoption
file as her father. The main stated reason for refusing to exercise its
discretion in favour of disclosure was that the individual named on the
applicant's adoption records had denied paternity, making him, in their view, an
"unacknowledged" birth father. Despite Alice's declaration of paternity at the
applicant's Crown wardship hearing and the fact that there is no other person
who was ever named as the birth father in respect of the applicant, the
Registrar of Adoption Information wrote to the applicant that the ADU did not
have "sufficient credible evidence to suggest that he is, in fact, the birth
father."

Applicant's affidavit, paragraphs 53 and 55 to 57 Application record, volume 1,
tab 2, pages 19 to 21

Letter from Registrar of Adoption Information, Application record, volume 1, tab
2P, page 89

MacInnes transcript, page 136, lines 5 to 10 Transcript brief, tab H

46. "[S]ince this case was very high profile" (it had been in the
media in 1999), the ADR made a second outreach to the man in January 2001.
While he continued to deny paternity, on this occasion he now admitted that he
did know Alice and that she boarded with his parents. The applicant's therapist
contacted the ADU on the applicant's behalf and was told that the man now
acknowledged having an eight-month relationship with Alice. The fact that the
man had changed his story from not knowing Alice to knowing and having a
relationship with Alice did not alter the ADU's analysis of the credibility of
the denial of paternity.

Applicant's supplementary affidavit, paragraph 20 Application record, volume 2,
tab 5, page 394

"Closing Note" Transcript brief, tab N

MacInnes affidavit, paragraph 32 Application record, volume 4, tab 13, page
1070

MacInnes transcript, page 140, line 9 to page 141, line 1 Transcript brief, tab
H

47. The Registrar of Adoption Information refused to release
identifying information to the applicant, alleging that the applicant had
threatened to harm her father. The legislation provides that a person to whom
information is refused on such grounds is entitled to a review by the Child and
Family Services Review Board. The policy manual of the ADU states that a person
to whom information is refused on such grounds shall be notified of the right to
request a review within 20 days. The applicant was never informed of this right
and was therefore deprived of her opportunity to exercise it.

Letter from Registrar of Adoption Information dated July 3, 2003 Application
record, volume 4, tab 13M, page 1118

MacInnes affidavit, paragraph 19 Application record, volume 4, tab 13, page
1066

Policy and Guidelines for the Disclosure of Adoption Information Application
record, volume 4, tab 12D, page 1036R

Applicant's supplementary affidavit, paragraph 12 Application record, volume 2,
tab 5, page 392

48. Throughout her many dealings with the ADR and CCAS, the
applicant felt that she was belittled, infantilized, disrespected and
discriminated against. Throughout, she has been denied access to her birth
records and to identifying information about her birth relatives. The applicant
reasonably assumed that a substitute birth registration had occurred following
her adoption and that her original birth registration had been sealed.

Applicant's affidavit, paragraph 44 Application record, volume 1, tab 2, page
18

Applicant's supplementary affidavit, paragraphs 2, 15, 19, 25 and 27
Application record, volume 2, tab 5, pages 390 and 393 to 395

49. Having gone to the extent of seeking media coverage of her
unsuccessful efforts to obtain the identity of her birth father, the applicant
is now in the position where the media and ADU's contact of him leave her
alleged birth father in no doubt as to her identity while she remains unaware of
his.

Get With the 21st century: Open Records for Adoptees, by Michele
Landsberg, Toronto Star, August 7, 1999 Application record, volume 1, tab 2N,
page 81

Letter from Dr. David Conroy to ADR dated May 1, 2003 Application
record, volume 1, tab 2U, page 109

50. The applicant filed this application on August 18, 2004. On
May 31, 2005, counsel for the respondent Ministry informed the applicant that in
the course of preparing its evidence in this matter, it had discovered that the
applicant's birth records had never, in fact, been sealed. The Registrar
General of the Vital Statistics Branch released a true copy of the applicant's
birth registration at that time. This birth registration was released without
consultation between the Vital Statistics Branch and the ADU.

Applicant's supplementary affidavit, paragraphs 4 to 6 Application record,
volume 2, tab 5, page 391

Hartman transcript, page 41, line 10 to 13 Transcript brief, tab E

MacInnes transcript, page 143, lines 15 to 22 Transcript brief, tab H

51. With the receipt of her original birth registration, the
applicant was able to confirm for the first time that Alice Victoria Fortune was
her mother and that her name at birth was Nida Marie Fortune. She also knew
with certainty that John was her maternal uncle and that she was of aboriginal
heritage.

Applicant's supplementary affidavit, paragraphs 8 to 10 Application record,
volume 2, tab 5, page 392

52. It is not without irony that if the applicant had not brought
this application to unseal her birth records, she would never have known that
they were not sealed. For the last 24 years, her life has been dominated by the
search for her birth records which had been consistently denied to her. This
exhausting search cost the applicant her privacy, her health, several careers
and many relationships and friendships. Others have judged her harshly when her
anger respecting what has been done to her by the system of sealed adoption
records manifests itself. Her search for her birth mother could have been
resolved years ago but for the non-legislated practices of the respondents.

Applicant's supplementary affidavit, paragraphs 5, 10 and 28 Application
record, volume 2, tab 5, pages 391 to 392 and 395

Lasting impact of secrecy in adoption records on the applicant

53. The applicant's life would have taken a fundamentally different
course had she been allowed to openly access her birth and adoption records.
The prime years of the applicant's life have been overshadowed by debilitating
grief and desire to know her identity. Through therapy, the applicant has tried
to deal with her anguish surrounding the secrecy of her adoption and her
records. Nevertheless, she describes her life as consisting of "daily, chronic
pain". She deposes, "I live with anguish every moment of my life as I am
bombarded continuously with the importance of roots, heredity and family while I
am expected to settle for fictive kinship created by others. The solution to
anguish is honesty."

Applicant's affidavit, paragraphs 73, 77, 79 and 83 Application record, volume
1, tab 2, pages 24 to 26

54. The applicant suffers from a profound lack of personal
identity. She now knows that she has aboriginal heritage but she does not know
what ancestry she holds from her father's side of the family. She does not know
if she has a possible claim to British citizenship. The applicant has never
been able to obtain a passport because she did not have a long-form birth
certificate which is required for passport applications. The applicant feels
that her privacy rights have been infringed in that the state knows the identity
of her biological father and holds information that she herself, if this
application is unsuccessful, will never know.

Applicant's affidavit, paragraphs 58, 80 and 81 Application record, volume 1,
tab 2, page 21 and 26

The present adoption disclosure regime

Original registration of birth

55. The current adoption disclosure statutory regime may be broadly
summarized as follows. For every child born in Ontario, two forms are submitted
to the Vital Statistics Office. The first, submitted within two days of the
child's birth, is a "notice of birth" completed by a medical practitioner who
attends at the birth. The second is the "statement of birth" submitted by the
child's biological parent(s) within 30 days of the birth. The Registrar General
registers the statement of birth, thereby creating a "birth registration". If
a birth certificate is requested, the Registrar General may issue a "long-form
birth certificate" (a copy of the birth registration) or a "short-form birth
certificate" (a wallet-sized card). Any person who is not adopted may obtain a
birth certificate upon application and payment of the prescribed fee.

Vital Statistics Act, R.S.O. 1990, sections 8, 9, 12, 43, 44

Hartman affidavit, paragraphs 3 to 7 Application record, volume 3, tab 11, pages
895 to 896

Adoption order

56. Between 1 to 2% of Ontario's population is adopted. A court
may make an order for the adoption of a child who has, inter alia, been placed
for adoption by a society or licensee.[11] The adoption application is held in
camera and the court file concerning the application is sealed from the public.
The court may, at the request of the adoptive parents, change the child's
surname to the adoptive parents' surname and change the child's given name. An
adoption order is final and irrevocable. As of that date, the adopted child
becomes the child of the adoptive parent and ceases to be the child of the
biological parent, as if the adopted child had been born to the adoptive parent.

Child and Family Services Act, supra, sections 146, 151, 153, 157, 158

Hartman transcript, page 30, line 15 Transcript brief, tab E

Adoption statistics, Transcript brief, tab L

57. When an adoption order has been made, the CFSA creates a
general prohibition on the release of information relating to adoption: once the
order is made, no person shall inspect information that relates to the adoption
that is kept by the Ministry of Community and Social Services, by a society, or
maintained by the Registrar of Adoption Information.[12] The general
prohibition is followed by enumerated exceptions, most significantly the release
of non-identifying and identifying information by the Registrar of Adoption
Information in accordance with the CFSA.

Child and Family Services Act, section 165

58. A copy of the adoption order is transmitted by the court to two
state appointees: (a) the Registrar General under the VSA; and (b) the Registrar
of Adoption Information under the CFSA. All documents used on an adoption
application, together with a certified copy of the original order, are sealed
and filed in the court. The original adoption order is given to the adoptive
parents.

Child and Family Services Act, supra, section 162(2) and (3), 165

59. The court and the Adoption Disclosure Registrar have discretion
to release adoption orders to any person, including parties other than the
adoptee or the birth parent. The Registrar of Adoption Information, who was a
Crown witness in this application, was unable to enumerate the circumstances in
which an adoption order may be released. She testified that each circumstance
is unique. When pressed, she gave the example of releasing an adoption order to
a lawyer for immigration purposes.

Child and Family Services Act, supra, section 162(2) and 165(2)(g)

MacInnes transcript, page 25, lines 13 to 15 and page 26, lines 2 to 13
Transcript brief, tab H

60. The Registrar General and Registrar of Adoption Information
hold authority under their respective statutes and may perform their duties
without regard to one another. Their respective roles in the release of
adoption information is considered in detail below.

Hartman transcript, page 16, lines 4 to 13 Transcript brief, tab E

MacInnes transcript, page 148, line 22 to page 150, line 4 Transcript brief,
tab H

Adoption information under the control of the Registrar General

61. The Registrar General, acting within the Ministry of Government
Services, registers the adoption order and makes a notation of adoption and any
change of name on the child's original birth registration. A person may apply
to the Vital Statistics Branch for a birth certificate or a copy of a
registration. If a person who is not adopted seeks a copy of his or her birth
registration, it would be refused only if the person did not fill out an
application form, did not submit the correct fee or did not provide the correct
information. In contrast, once the notation of adoption is made on a birth
registration, the person is no longer able to obtain a copy of his or her own
birth registration or a long-form birth certificate.

Vital Statistics Act, supra, sections 28 and 44(1)

Hartman transcript, page 9, line 8 to 17 Transcript brief, tab E

62. After an adoption, adoptive parents may apply to the Registrar
General for a new registration of the child's birth which shows that they were
the birth parents. If such an application is made, the Registrar General
substitutes a registration showing that the child was born to the adoptive
parents, withdraws the original registration from the files and seals it. A
substitute registration may also include altered information at the request of
the adoptive parents, for instance that a child was born as a twin. If a
substitute registration of birth is not created after an adoption, the original
registration of birth is not sealed pursuant to the VSA (although it may have
been sealed by the court when the adoption order was made).[13] Currently, a
substitute registration is made in approximately 60% of adoptions, meaning that
up to 40% of original birth registrations for adopted persons remain unsealed in
Ontario.

Vital Statistics Act, supra, section 28

Hartman affidavit, paragraph 4 Application record, volume 3, tab 11, page 895

Hartman transcript, page 14, line 25 to page 15, line 4; page 26, lines 1 to
4;page 19, line 23 to page 20, line 6; and page 31, lines 10 to 13 Transcript
brief, tab E

63. Even where an adopted person's original birth registration
remains unsealed, the Registrar General under the VSA exercises discretion not
to release the registration to the adopted person under an unrelated provision
in the Act. Section 44(1) provides:

Upon application and upon payment of the required fee, any person who furnishes
sufficiently accurate particulars, and satisfies the Registrar General as to the
person's reason for requiring it, may obtain from the Registrar General a birth
certificate in respect of any birth of which there is a registration in his or
her office.

Vital Statistics Act, supra, section 44(1)

64. The Deputy Registrar General was a Crown witness in this
application.[14] She has held her position since April 2000, was never
previously employed by the Vital Statistics Branch and has never been associated
with the ADR. She discussed the application form for a birth certificate, which
requires the applicant to furnish particulars such as his name at time of birth
and his mother's name and address at the time of his birth. It is not clear on
the face of the form or from its accompanying written instructions whether an
adopted applicant should list her adoptive name or whether she is required to
list her birth name (which she may not know). While admitting that the
application form requires an applicant to acknowledge that it is an offence to
provide false information, the Deputy Registrar General appeared to feel that
adopted persons would simply have to do their best with the form and leave it to
the Vital Statistics Office to make a determination during processing as to
whether they had satisfied the requirement of providing sufficient particulars.

Hartman transcript, page 5, lines 15 to 20; page 15, lines 17 to 19; page 53,
lines 5 to 10; and page 56, line 13 to page 57, line 18 Transcript brief, tab E

Request for Birth Certificate Transcript brief, tab E2

65. The Deputy Registrar General was questioned respecting the
"reasons" component of section 44(1) of the VSA. The application form contains
a section entitled "Why are you requesting this information?" It provides a
line for the applicant to specify a reason. It then requires an applicant to
check one of four boxes (first time applying for a birth certificate or lost,
stolen or damaged birth certificate). Other than those four boxes, no
indication is offered to the applicant of what will suffice as a reason that
satisfies the Registrar General. On cross-examination, the Deputy Registrar
General herself was not able to provide a list of reasons which would satisfy
her that an original birth registration would be released. She said there was
no written policy with respect to the circumstances in which an original birth
registration would be released; it is a practice. She indicated that her only
reference point was previous cases she had been involved in. When pressed, she
indicated without explanation that curiosity on the part of an adoptee would not
be a reason satisfactory to her. She said that she could consider medical
health and mental health concerns as a reason.

Request for Birth Certificate Transcript brief, tab E2

Hartman transcript, page 20, line 12 to page 21, line 12; page 32, line 21 to
page 33, line 16 Transcript brief, tab E

66. Further, while acknowledging that her authority is not
circumscribed by the provisions of the CFSA, the Deputy Registrar General
deposed that that she will not release unsealed original birth registrations
other than through the mechanisms provided in the CFSA. For instance, upon
receiving a request for release of information respecting an adoptee's original
registration, she considers the status of the birth parents (live or dead and,
if dead, for how long). She testified that she will release an original birth
registration only rarely. In fact, since 2000 she has only released three.

Hartman transcript, page 16, lines 2 to 22 and page 21, lines 13 to 17
Transcript brief, tab E

Hartman affidavit, paragraph 4 Application record, volume 3, tab 11, page 895

67. The application form for the request for a birth certificate
indicates that a person applying for his or her own birth certificate must be at
least 13 years of age. The Deputy Registrar General, when questioned, admitted
that the requirement was not statutory and she did not know why it was imposed.
Her evidence was that it had been in place by policy since at least the early
1990s.

Hartman transcript, page 58, lines 16 to 22 Transcript brief, tab E

Request for Birth Certificate Transcript brief, tab E2

Hartman answers to undertakings Transcript brief, tab L

68. In some cases, an adopted person who does not know he or she is
adopted applies to the Vital Statistics Branch for a long-form birth
certificate. In those cases staff at the Vital Statistics Branch, who have no
training or expertise in the area of adoption, undertake the delicate task of
informing the person that they are adopted.

Hartman transcript, page 24, lines 10 to 14; page 51, lines 6 to 11 Transcript
brief, tab E



Adoption information under the control of the Registrar of Adoption Information

69. The Registrar of Adoption Information, acting within the
Adoption Disclosure Unit (ADU) of the Ministry of Community and Social Services,
maintains an Adoption Disclosure Register (ADR). She is granted discretion in
many areas relating to adoption under the CFSA. She has exclusive authority to
release adoption orders and to exercise discretion respecting health, safety and
welfare requests and respecting refusals to disclose information on the grounds
of serious physical or emotional harm.[15]

Child and Family Services Act, supra, sections 165(2)(g), 168 and 171

70. Under the Registrar of Adoption Information's supervision, the
ADU comprises the co-ordinator of the ADU and 17 staff reporting to the
co-ordinator. The current co-ordinator of the ADU has been with the unit since
February 2005 and the Registrar could not comment on her professional background
or qualifications. The staff perform tasks in the areas of intake (e.g.,
processing application forms), research (searching for birth relatives using
various databases), registering (technical work of maintaining entries in the
database) and counselling (non-therapeutic "customer service" type work). They
are required to have general administrative skills and no member of the office
has a medical background.

MacInnes transcript, pages 10 and 11; page 13, line 23 to page 14, line 14; page
15, lines 1 to 18; page 24, lines 4 to 12; page 29, line 20 to page 31, line 1
Transcript brief, tab H

71. ADU staff release non-identifying and identifying information
with direction from policy manuals which were written by the Minister of
Community and Social Services in the 1980s and have not been modified since that
time.

MacInnes transcript, page 38, lines 2 to 6 Transcript brief, tab H

Training Handbook for the Disclosure of Adoption Information Application
record, volume 4, tab 12C, page 966

Policy and Guidelines for the Disclosure of Adoption Information, Application
record, volume 4, tab 12D, page 995

72. Non-identifying information is defined as any information that
will not, alone or in combination with other information, reveal the identity of
the person to whom it refers. For instance, it could include physical
descriptions, medical information, religion, ethnic origin, education and
reasons for the adoption. What is given to an adopted person varies depending
on the contents of the person's file, which in turn varies according to the data
collection practice of the agency or particular social worker who saw the birth
mother at the time that the child was placed for adoption.[16]

Child and Family Services Act, supra, sections 163 and 166

MacInnes affidavit, paragraphs 14 to 15 Application record, volume 4, tab 13,
page 1064

MacInnes transcript, page 50, lines 2 to 9 Transcript brief, tab H

O'Reilly transcript, page 32, lines 1 to 23 Transcript brief, tab G

73. Because of the contextual definition of non-identifying
information, there is no predictable list of facts that will be provided to
adoptees who request information; rather, the ADU forms ask persons what
information they already have and tailor how much information is released to
each person who requests it. For instance, if necessary to prevent
identification, discretion could be exercised to withhold even a date of birth.

MacInnes transcript, page 42, line 13 to page 43, line 15; page 46, line 5 to
page 47, line 3 Transcript brief, tab H

74. Non-identifying information may be released to adult adopted
persons, adoptive parents, minor adopted persons with the consent of an adoptive
parent and birth relatives. This information is gleaned from the records kept
by the agency that arranged the adoption and is provided to applicants in the
form of a "social history", or narrative created by a society staff member. An
applicant seeking non-identifying information cannot view the actual information
in the CCAS file, even in a redacted form.

Child and Family Services Act, supra, section 166

MacInnes affidavit, paragraphs 14 to 15 Application record, volume 4, tab 13,
page 1064

Applicant's supplementary affidavit, paragraph 25 Application record, volume 2,
tab 5, page 395

75. The release of identifying information is even more narrowly
circumscribed. The ADU may release non-identifying information: (a) to adoptees
or birth parents both registered in the ADR or after a search conducted by the
ADR, only on mutual consent; or (b) in the Registrar's discretion, where the
health, safety or welfare of a person requires the disclosure.

Child and Family Services Act, supra, sections 167, 168, 169

76. The ADR is a registry of adult adopted persons and birth
relatives (birth parents, birth grandparents, adult birth siblings), as well as
any other person desirable in the Registrar's opinion, who have been separated
by adoption and are looking for each other. If both the adoptee and birth
relative have registered, a match is made and ADU staff will contact the parties
with options for contact. If there is no match, a registered person may request
that the ADU actively search for his or her birth relatives. Thus, the ADR is
an active registry.

Child and Family Services Act, supra, section 167

MacInnes affidavit, paragraphs 4 to 13 and 16 to 17 Application record, volume
4, tab 13, pages 1060 to 1065

77. Even if there is a match in the ADR, the Registrar of Adoption
Information retains discretion to withhold identifying information. There may
be situations where a match occurs and consent to disclosure is obtained from
both registered parties, but there are further considerations such as the
possibility of indirectly identifying someone who has withheld consent. In such
cases a legal consultation could be required before further action is taken.

MacInnes transcript, page 56, line 23 to page 57, line 7 and page 65, line 15 to
page 66, line 6; page 68, line 19 to page 69, line 12 Transcript brief, tab H

78. If there is no match, the ADR conducts a search for a birth
relative. Although it is nowhere limited by law, the ADR's practice is to
perform only one search at a time for a registrant. Searches currently take up
to three years to complete. In the past, if the first search was completed and
the birth relative did not consent to the release of identifying information,
the registrant could request a second search, and theoretically a third or more.
However, for quite some time, the ADR has not been addressing second search
requests, due to volume.[17] If a person ever seeks to make a third request,
such request would be assigned even lower priority given that second requests
are not being carried out.

MacInnes transcript, page 101, lines 13 to 24; page 102, lines 5 to 8; page 72,
lines 1 to 10; page 104, line 17 to page 105, line 11 Transcript brief, tab H

79. If a match occurs or a search is successful in locating a birth
relative of the registrant, the ADU contacts the birth relative to request their
written consent to disclosure of identifying information. In making contact,
the ADU does not disclose any particulars respecting the persons with whom the
match has been made. If there is match and there is consent, persons are
referred by the ADU to a children's aid society to facilitate a reunion. If the
birth relative does not wish to have a reunion, the ADU might pass on a letter
as a go-between but not any follow up correspondence.

Child and Family Services Act, supra, section 167(5) and 169(3)

MacInnes transcript, page 73, line 16 to page 74, line 11; page 77, line 7 to 23
Transcript brief, tab H

80. Pursuant to section 168 of the CFSA, the Registrar of Adoption
Information has the discretion to release identifying information if, in her
opinion, "the health, safety or welfare of that person or any other person
requires the disclosure." The application form requires a statement from the
person requesting the information as well as a form that must be completed by a
medical professional. The applications are reviewed by staff[18] who determine
whether the application is completed properly and whether the medical
practitioner actually supports the application and who then make a
recommendation to the Registrar of Adoption Information. Although the ADU had
made use of a medical consultant[19] since 1999, the consultant does not review
individual applications.

MacInnes transcript, page 16, line 6 to 8; page 20, lines 2 to 9; page 22, line
8; pages 23, lines 15 to 20; page 24, lines 13 to 22, page 24, lines 23 to 25
and page 25, lines 5 to 10 Transcript brief, tab H

Blank form for a health, safety and welfare request Transcript brief, tab K

81. If an applicant's physician is of the opinion that the person
has a psychological condition triggered by lack of access to adoption
information or other "psychological or emotional dysfunction relating to the
adoption", the Registrar may release information on health, safety and welfare
grounds.[20] Although the statute does not require consent of the person about
whom information is being released, the Registrar of Adoption Information
considers the issue of consent as a factor in exercising her discretion.

MacInnes transcript, page 88, lines 22 to 25; page 90, line 5 to page 91, line
20; page 95, lines 3 to 7 Transcript brief, tab H

MacInnes affidavit, paragraph 17 Application record, volume 4, tab 13, page
1065

Policy and Guidelines for the Disclosure of Adoption Information, Application
record, volume 4, tab 12D, page 1034

82. Birth fathers enjoy a special position in the adoption
disclosure system. Pursuant to section 169(1)2 of the CFSA, the ADU may search
only for an "acknowledged birth father", meaning one who has himself
acknowledged that he is the adopted person's biological father. It is not clear
what means of acknowledgement will suffice. In 1994, there was a policy change
(which became a written guideline in 2000) within the ADU that permitted
searches for "unacknowledged" birth fathers.[21] If the ADU is unable to locate
an unacknowledged birth father or finds him deceased, identifying information
about him may be released. If the ADU finds him alive, the ADU staff member
invites him to acknowledge paternity. If the birth father denies paternity,
credibly or otherwise, that is the end of the process.

Guideline respecting unacknowledged birth fathers Application record, volume 4,
tab 13A, page 1075

MacInnes transcript, page 108, line 7 to page 112, line 3 and page 139, line 15
to page 140, line 2 Transcript brief, tab H

83. Where the statutory disclosure requirements are otherwise met,
the Registrar of Adoption Information retains discretion to refuse disclosure of
non-identifying or identifying information if the disclosure might result in
serious physical or emotional harm to any person. In such cases, the person to
whom the information was refused has a right to a review by the Child and Family
Services Review Board. When the Registrar of Adoption Information was asked if
she would sometimes tell a person to whom she has denied release of information
because of a fear of harm some other reason for the refusal, she said that she
personally would not but that she "could not guarantee that of others."

Child and Family Services Act, supra, sections 171 and 172

MacInnes transcript, page 114, line 10 to page 115, line 5 Transcript brief,
tab H

PART IV - ISSUES AND LAW
84. The following issues are raised in this application:

(a) Does the scheme propounded by sections 161 to 174 of the
Child and Family Services Act, in combination with the adoption provisions of
the Vital Statistics Act, infringe the rights of adopted persons under the
Charter?

(b) If Charter rights are infringed, are the infringements
demonstrably justified in a free and democratic society?

(c) If the infringements are not demonstrably justified, what is
the appropriate remedy?

Each of these issues will be discussed in turn.



Issue A: Does the scheme propounded by sections 161 to 174 of the Child and
Family Services Act, in combination with the adoption provisions of the Vital
Statistics Act, infringe the rights of adopted persons under the Charter?

85. The applicant submits that sections 161 to 174 of the CFSA, in
combination with the VSA, infringe upon the fundamental rights of adopted
persons, particularly their rights under sections 7 and 15 of the Charter of
Rights and Freedoms, and cannot be demonstrably justified in a free and
democratic society. The applicant applies under section 24(1) and section 52 of
the Charter for remedies arising from the breach of her Charter rights and a
declaration of invalidity.

Application of the Charter

86. There is no question that the Charter applies to the respondent
Her Majesty the Queen in Right of Ontario. It also applies to the respondent
CCAS because it is a licensed society within the meaning of the CFSA. It acts
pursuant to statutory authority and state direction to enable the government to
further its objectives of placing children for adoption and controlling the
information that is thereafter released to members of the adoption triad.

Charter of Rights and Freedoms, supra, section 32(1)

Child and Family Services Act, supra, section 15

Eldridge v. British Columbia, [1997] 3 S.C.R. 624

Section 7

87. Section 7 of the Charter enshrines a person's right to life,
liberty and security of the person. Liberty means more than freedom from
physical restraint; it includes the freedom to make personal decisions of a
fundamental character. This is the right to an irreducible sphere of personal
autonomy wherein persons may make inherently private choices free from state
interference. Inherently private choices are those that can be characterized as
"basic choices going to the core of what it means to enjoy individual dignity
and independence".

R. v. Morgentaler, [1988] 1 S.C.R. 30

Godbout v. Longueuil (City), [1997] 3 S.C.R. 844

88. Section 7 also enshrines the right to security of the person, a
right that protects both the physical and psychological integrity of the
individual. Where the deprivation is not physical, security of the person will
be triggered where state action leads to "serious state-imposed psychological
stress". That is, the psychological harm must be state-imposed, meaning that
the harm must result from the actions of the state, and the psychological
prejudice must be serious, meaning that ordinary stresses inherent in government
action will not usually lead to section 7 violations. The effects of state
interference must be assessed objectively, with a view to their impact on the
psychological integrity of a person of reasonable sensibility. While these
effects must be greater than ordinary stress, they need not rise to the level of
psychiatric illness.

J.(G.) v. Minister of Health and Community Services, [1999] 3 S.C.R. 46 at
paragraphs 58 and 60

Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519

Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307

89. The ability to know one's identity indisputably lies at the
core of what it means to enjoy individual dignity and independence. An
adoptee's ability to gain a sense of self is the most personal of endeavours and
should be free from state interference. A child has no choice about whether he
will be adopted and with whom he will be placed for adoption.[22] She has no
opportunity to give or withhold her consent to this irrevocable legal
transaction which will alter the course of her life. In this sense, adopted
children are the most vulnerable parties in the adoption process. The state
decision to thereafter withhold information from them about their earliest
origins is an intrusion into a private sphere. Jerome Smith, a clinical social
worker who was a Crown expert in this case, testified that an adopted child must
integrate both the adoptive parents and the birth parents into the fabric of his
or her identity.

Smith transcript, page 24, line 5 to 10 Transcript brief, tab D

90. The right to know one's parents is linked to individual human
dignity in international law. The Convention on the Rights of the Child (CRC),
among the most widely endorsed international documents, was ratified by Canada
in 1992. Canadian lawmakers and jurists have accepted it as the building block
for our laws impacting children.[23] The CRC provides, in part:

3 1. In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.

...

7 1. The child shall be registered immediately after birth
and shall have the right from birth to a name, the right to acquire a
nationality and, as far as possible, the right to know and be cared for by his
or her parents.

...

8 1. States Parties undertake to respect the right of the
child to preserve his or her identity, including nationality, name and family
relations as recognized by law without unlawful interference.

Convention on the Rights of the Child, General Assembly resolution 44/25 of 20
November 1989, articles 3(1), 7(1) and 8(1)
91. The best interests of the child test in Article 3 is the single
most important principle in Canadian legislation and jurisprudence affecting
children and families. The CFSA provides that its "paramount purpose... is to
promote the best interests... of children". The CFSA requires judges making an
adoption order to consider whether the order will be in the child's best
interests. Nonetheless, the field of adoption disclosure stands apart as an
area where the best interests of the child is only one factor seemingly weighed
against the interests of birth parents and adoptive parents. For example,
adoption disclosure laws stipulate that identifying information may be disclosed
only in respect of birth fathers who acknowledge paternity. There is no other
area of family law where a father's simple denial of paternity would stand
unchallenged by the state in stark contrast to the child's right to know the
identity of his or her parents.

Child and Family Services Act, supra, sections 1 and 146

Young v. Young, [1993] 4 S.C.R. 3

92. With respect to the child's right to know his or her parents
pursuant to Article 7 of the CRC, the Implementation Handbook for the CRC
explains that the definition of "parents" includes biological parents. The
phrase "as far as possible" imposes a stricter standard than the best interests
of the child test and means that a child should know his or her parents unless
the parent cannot be identified or if a mother refuses to identify a father.
The United Nations Committee on the Rights of the Child has commented that
Canada's adoption disclosure laws do not honour this international principle.

Implementation Handbook for the CRC, by Rachel Hodgkin and Peter Newell (UNICEF:
New York, 2002)

Donalee Moulton, "UN raps Canada's knuckles over adoption" The Lawyers Weekly
Vol. 23, No. 41 (March 5, 2004)

93. The restrictions in adoption disclosure laws readily meet the
standard of serious state-imposed psychological stress. To the applicant,
knowing the identity of her biological parents is fundamental to her personal
identity and mental health. This is typical of the experience of a significant
proportion of adopted children. Psychological research weighs heavily against
the sealing of adoption records and in favour of open adoption laws as being in
the best interests of the child. Psychologists and theorists working in the
field of adoption recognize that a primal relationship exists between a newborn
human infant and his mother. The removal of a child from her mother is a deeply
traumatic event that lingers in the child's psyche, even if the child is later
placed with a loving adoptive family. Although a child may be very young at the
time of being removed from her mother, at some level she feels the same loss as
an older person may feel when a parent dies or otherwise become absent.
Psychologists have identified this phenomenon as a "primal wound" suffered by
adopted children.

Affidavit of Dr. David Kirschner sworn January 19, 2005 (Kirschner affidavit),
paragraphs 7 to 10 Application record, volume 1, tab 3, pages 120 to 121

94. The primal wound is not necessarily a barrier to a child's
adjustment and contented upbringing in her adoptive family. However, the loss
of a biological mother cannot be overcome simply through the act of adoption,
any more than an adult who loses a spouse can move on to another relationship as
if suffering no loss. If the state did not impose impediments to a child's
ability to know and access information about her origins, she could
appropriately grieve the loss of her biological relatives.[24] Grieving is a
healthy process required before a child who has been separated from his or her
birth relatives can start on the path of healing and gain an understanding of
their identity.

Robinson affidavit Application record, volume 2, tab 4B, pages 315 to 317

95. Unfortunately, romanticized and philanthropic notions of
adoption in mainstream society fail to recognize the child's sense of loss as
the profound, valid experience that it is. Where grieving and healing do not
occur, the primal wound makes itself felt in the form of disenfranchised grief,
causing many adoptees to experience emotional or psychological crisis during
adolescence or adulthood. Even well-functioning adoptees suffer from the unmet,
often unacknowledged need to know their birth parents as well as from the
experience of growing up deprived of vital elements of their identity. In this
sense, the unsealing of adoption records is a necessary but not sufficient
condition for adoptees to address their adoption and identity issues.

Kirschner affidavit, paragraphs 9 to 13 and 22 Application record, volume 1, tab
3, pages 120 to 121 and 124

Supplementary affidavit of Dr. Kirschner sworn July 5, 2005 (Kirschner
supplementary affidavit), paragraphs 2 and 3 Application record, volume 2, tab
6, pages 540 to 541

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, pages 318 to 319

Evelyn Robinson, Adoption and Loss, rev. ed. (Christies Beach, Australia: Clova
Publications, 2003) Application record, volume 2, tab 4C, pages 367 to 141

Nancy Verrier, The Primal Wound, Understanding the Adopted Child, (Baltimore:
Gateway Press, 1993), chapter 4, Application record, volume 1, tab 3B, pages
143R to 145R

96. The impact of disenfranchised grief in the adopted population
is well-documented in the scientific literature, most of which has recorded the
effects of the last century of closed adoption records. Adoptees are
over-represented in psychotherapy and mental health professionals have observed
a higher incidence of conduct disorders and antisocial behaviour in
clinically-referred adoptees than in their non-adopted counterparts. Unique
psychological problems are encountered by adoptees during childhood and
adolescence, particularly complications in identity formation due to a lack of
openness about biological roots. As Dr. Kirschner, a psychologist practicing in
the field of adoption for several decades, has concluded, "Information about
one's beginnings and ancestors is an essential building block in identity
formation...".

David Kirschner, "Adoption Psychopathology and the 'Adopted Child Syndrome'" in
Directions in Child & Adolescent Therapy, Volume 2, 1995 at 6-3 and 6-5
Application record, volume 1, tab 3D, page 282

G. Emerson Dickman, "Adopted Child Status, Identity and Behaviour", available
online: Transcript brief, tab A14

C. Alan Steed, "Children of Adoption: Are They at Greater Psychological Risk? A
Critical Review of the Literature" Application record, volume 2, tab 6A, page
547

David Kirschner, "Issues of Psychoanalytic Technique with Adoptees - Revisited"
ASPP Newsletter (Fall 2003) Application record, volume 2, tab 6C, page 592

David M. Brodzinsky, Marshall Schecter and Robin Marantz Henig, Being Adopted:
The Lifelong Search for Self (Doubleday: New York, 1992) at 10 Transcript
brief, tab A13

Ruth McRoy, Harold Grotevant and Louis Zurcher, Jr., Emotional Disturbance in
Adopted Adolescents: Origins and Development, 1988 Transcript brief, tab A12

Robert Sabalis and Earl Burch, Jr., "Comparisons of Psychiatric Problems of
Adopted and Nonadopted Patients" (1980) 73:7 Southern Med. J. at 867 to 869
Transcript brief, tab A7

Andrea Weiss, "Symptomology of Adopted and Nonadopted Adolescents in a
Psychiatric Hospital" (1985) XX:80 Adolescence at 763 to774 Transcript brief,
tab A8

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, pages 318 to 319

Evelyn Robinson, Adoption and Loss, rev. ed. (Christies Beach, Australia: Clova
Publications, 2003) Application record, volume 2, tab 4C, pages 367 to 141

97. The CCAS, having dealt with thousands of adoptees, acknowledges
the phenomenon of adoptees having a psychological need to know all information
available about their pre-adoption life. Dr. Smith, an expert for the Crown,
opined that not only is it natural, but it is also a universal phenomenon for an
adopted child to be curious about his or her birth family.

O'Reilly transcript, page 69, lines 5 through 21 Transcript brief, tab G

Smith transcript, page 68, lines 20 to 25 Transcript brief, tab D

98. An adoptee's need to access her birth and adoption records is
not necessarily about entering into a relationship with her birth relatives.
Rather, it underlies the adoptee's ability to find herself and her own true
identity. This is a fundamental issue of human dignity. Thus, the fact that
some adoptees are "non-searchers" who have no wish to be reunited with their
birth relatives says nothing about the desirability or otherwise of an open
records system.[25]

Nancy Verrier, The Primal Wound, supra, Application record, volume 1, tab 3B,
pages 142

99. Even when they cannot have a relationship with their birth
parents, adoptees can shape their fundamental sense of identity by gaining
access to adoption and birth records which reveal their original names. Dr.
Lifton writes:

As an adopted child, my birth name had been taken from me, and, therefore,
according to the beliefs of many old cultures,[26] I was vulnerable to all kinds
of dangers. . By taking possession of my birth name, by sealing it away with the
names of all adoptees, society took away my power and the power of all the
adopted.

It is impossible to describe how adoptees feel when they learn that first or
last name given them at birth. The birth name is a confirmation that you were
born and that you exist.

Lifton, supra, at page 268 Application record, volume 1, tab 3C, page 264R

100. It is also important to distinguish between the quest for
unsealed original adoption records and the contemporary trend toward "open
adoptions", meaning adoptions in which contact between an adopted child and
members of her family of origin is encouraged while the child is still a minor.
As Dr. Lifton has written, "The secret in today's adoptive family is not that
the child is adopted but who the child is." It is not enough for the state to
impose restrictions on an individual's ability to know his or her identity and
then fall back on the goodwill of private persons to circumvent those
restrictions.

Lifton, supra, at 23 Application record, volume 1, tab 3C, page 203

Supplementary affidavit of Evelyn Robinson sworn July 14, 2005 (Robinson
supplementary affidavit), paragraph 12 Application record, volume 2, tab 7,
pages 608 to 609

101. In striking at the very essence of identity and personhood, the
provisions of the statutes in question infringe the section 7 rights of adopted
persons.[27]

Section 15

102. The applicant submits that Ontario's adoption legislation
further contravenes the rights of adopted persons under section 15(1) of the
Charter. Section 15(1) reads as follows:

Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.

Charter, supra, section 15(1)

103. The purpose of section 15(1) is to prevent the violation of
essential human dignity and freedom through the imposition of disadvantage,
stereotyping or political or social prejudice. It also promotes a society in
which all persons enjoy equal recognition at law as human beings or as members
of Canadian society, equally capable and equally deserving of concern, respect
and consideration. Discrimination is understood as a distinction based on
grounds relating to personal characteristics of the individual or group which
has the effect of imposing burdens, obligations or disadvantages on the
individual or group not imposed on others.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at
paragraph 88

104. In considering whether an infringement has occurred under
section 15(1), the courts undertake a three-part analysis, which may be
summarized as follows:

1. Does the impugned law impose differential treatment as between the
claimant and others on the basis of a personal characteristic?

2. Is this differential treatment based on one or more enumerated or
analogous grounds?

3. Does the differential treatment discriminate, in the sense of demeaning
the claimant's dignity?

Law v. Canada, supra

105. With respect to the first part of the test, a law may impose
differential treatment by either drawing a formal distinction between the
claimant and others, or by failing to take into account the claimant's already
disadvantaged position and thereby effecting substantively differential
treatment between the claimant and others. It is submitted that the former part
of the test applies in the case at Bar, because the CFSA and the VSA create a
separate system of legal record-keeping and information disclosure that applies
only to adoptees. The appropriate comparator group is the class of non-adopted
persons.

106. With respect to the second part of the test, the applicant
submits that adopted persons comprise an analogous ground under section 15(1) of
the Charter. Jurisprudence has identified three possible categories for
analogous groups: (1) groups defined by an innate or unchangeable characteristic
(e.g., gender, linguistic background and sexual orientation); (2) groups whose
members voluntarily associate for reasons so fundamental to their human dignity
that they should not be forced to forsake the association (e.g., human rights
activists); and (3) groups associated by a former voluntary status, unalterable
due to its historical permanence. It is submitted that adopted persons fall
into the first category. Adoption is a legal transaction which severs a child's
legal ties to her birth family and binds her to adoptive parents who are genetic
strangers to him. The child is then, without any choice in the matter, in legal
custody of the adopters until she reaches the age of majority and beyond, a fact
which she cannot reverse and which affects her sense of self. In this manner,
the fact of being adopted is an immutable personal characteristic.

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 739

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R.
203

107. With respect to the third part of the test, a variety of factors
may be considered to determine whether the legislation demeans the dignity of a
section 15(1) claimant. These factors include, but are not limited to:
pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced
by the individual or group at issue; the ameliorative purpose or effects of the
impugned law upon a more disadvantaged person or group in society; and the
nature and scope



of the interest affected by the impugned law. The "dignity" aspect of the test
is designed to weed out trivial complaints that do not engage the purpose of the
equality provision.

Law v. Canada, supra

Lovelace v. Ontario, [2000] 1 S.C.R. 950

108. The current adoption disclosure regime strikes at the heart of
the individual dignity of adopted persons. It is difficult to imagine what
could be further from being a "trivial" assertion of indignity. Persons who are
adopted are treated unequally by the state insofar as they do not have the same
rights and privileges as other adults with respect to access to proof of birth,
information about their origins and participation in the decision to
re-establish contact with their birth parents. Every moment that their records
are denied to them is a reinforcement of the shame surrounding their births and
adoptions, telling them that their original identities are less valid than their
adopted identities.

Please see paragraphs 15 and 56 to 83, above.

109. One aspect of the indignity invoked by the system of fictitious
identities, sealed records and limited adoption disclosure is that adopted
persons feel they are forced to state fictional information in many situations
which non-adopted persons need not consider. For instance, a passport
application requires proof of birth registration but adopted persons, whose
original birth registrations are inaccessible, have to choose between having a
passport issued in their adoptive identity or not having a passport at all.
Likewise, census forms require adopted persons to answer questions with their
adoptive information. Government employment forms require information with
respect to ethnicity which adopted persons may not know. As in the applicant's
case, an adopted child may not know that he or she is of First Nations origin,
and is therefore robbed of his or her section 35 Charter rights or the
opportunity to register under the Indian Act.[28] There are innumerable other
examples in everyday life where adoptees are forced to perpetuate the fiction of
their adoptive identity at the expense of their dignity. For any other group of
persons, these practices would be fraud.[29]

110. Adoptive parents may also be affronted by the state's assumption
that they wish to deny the adopted child a right to know his or her identity.
Many adoptive parents expressed to Dr. Garber during his tenure as Special
Commissioner that they felt the practice of completing a fictional statement of
live birth was tantamount to fraud. This concern persists among adoptive
parents today. During the legislative debates on proposed adoption disclosure
legislation in 2005, MPP Ernie Parsons, himself an adoptive parent, described
the feeling of being "amazed" at the alteration of records to show that adoptive
parents had given birth to the child:

It just didn't seem right to us because, I thought, this is almost geared as
though we're not supposed to tell anybody she's adopted. We're supposed to
pretend that we gave birth, and that wasn't right either. ... It was legal, but
morally it wasn't quite right.

September 15, 2005, Legislative Assembly of Ontario, Standing Committee on
Social Policy, Adoption Information Disclosure Act, 2005 at 0930

Garber Report, page 40 Application record, volume 4, tab 12A, page 925R

Section 15 as it applies to the Registrar General

111. With respect to the acquisition of one's original birth
registration from the Vital Statistics Branch, adopted persons are
unquestionably treated differently than non-adopted persons. If a person who is
not adopted seeks a copy of his or her birth registration, it would be refused
only if the person did not meet the administrative requirements (e.g., payment
of the fee, completion of the application form). In contrast, adopted persons,
once an adoption is noted to have taken place on their birth registration, are
no longer able to access the registration. Thus, accurate records of live birth
are readily available to all persons in Ontario who have not been adopted or
whose parents have consented to the release of such information. Such persons
have the right to preserve their identity, while the adopted persons do not.

Hartman transcript, page 41, line 10 to 13 Transcript brief, tab E

112. As early as 1985, the Garber Commission identified the patent
inequality between adopted and non-adopted persons created by the creation of
fictitious records and the sealing of the originals under the VSA. Dr. Garber
observed:

Any individual except an adoptee receives his or her original birth certificate
because there is only an original. The adoptee has the dubious privilege of
having two birth-certificates: the original, to which he currently has no
access; and the amended certificate which hides his birth name.

...

The adult adoptee, as one of a class of individuals, should not be discriminated
against because of an irreversible fact in his or her birth. While the Charter
of Rights has just begun to be explored for remedying the discrepancy of unequal
treatment between adoptees and others, the denial of access to birth records is
a very likely area for challenge if the Ontario Legislature fails to provide
equal treatment. As discussed earlier, although adoptees as such are not
enumerated among those for whom protection is sought in Section 15 of the
Charter, there is sufficient interpretation of the inclusion of other groups not
named that adoptees should not experience too much difficulty in obtaining
standing as a group that requires protection from discrimination.

The original birth certificate provides one small set of facts that are
incontrovertible and that belong to the adult adoptee as a true record of his
past. The adoptee may choose to do nothing more with this information, or he
may wish to seek additional information. The choice should lie with the adult
adoptee not with the Government or others as to what he wishes to do with the
barest facts of his life. ... [emphasis added]

Garber Report, pages 40 and 41 Application record, volume 4, tab 12A, pages
925R to 926

See also Jeffrey Wilson and Mary Tomlinson, Wilson: Children and the Law, Second
Edition (Butterworths: Toronto, 1986) at pages 156 to 160, and the current
looseleaf version (Butterworths: Toronto, 1994), updated to December 2003, at
pages 5.9.8 to 5.15

113. It is noteworthy that the legal system ordinarily makes no
attempt to write out of existence, by sealing records or otherwise, the various
parental figures who depart from their children's lives, such as the divorced
parent who relinquishes custody. It is only in regulating adoptive families -
families formed in the absence of any blood link - that the government chooses
to seal records so as to effectively deny the legal record of the existence of
the biological link and biological reality.

Lifton, supra, at pages 24 and 25 Application record, volume 1, tab 3C, page
203R

114. Adoption orders or adoptive parents may change the name of a
child. The names of non-adopted persons in Ontario may only be changed pursuant
to the Change of Name Act. That Act provides, inter alia, that a person with
lawful custody of a child under the age of 12 may change the child's surname or
forename or both. In such cases, the person making the application must
surrender all birth certificates of the child that are in that person's
possession to the Registrar General. Where the name of a non-adopted child
whose birth was registered in Ontario is changed, the Registrar General notes
the change of name on the birth registration and issues a new birth certificate
and a change of name certificate. The new birth certificate shows only the new
name, but the change of name certificate shows both the child's former and new
name. The original birth registration is not sealed and nothing prevents a
child from thereafter requesting her long-form birth certificate, which would
show her original name with the notation of name change upon it. On registering
the change of name of a non-adopted child, the Registrar General promptly causes
a notice of the change of name to be published in The Ontario Gazette, thereby
negating any suggestion of secrecy with respect to the transaction. This
provides a dramatic contrast to the treatment of adopted persons.

Change of Name Act, R.S.O. 1990, c. C.7, sections 5, 7 and 8

Vital Statistics Act, supra, sections 14(6) and (7), and 43(4)

115. The CFSA also provides that persons engaged in research may,
with the written approval of the Registrar of Adoption Information or the
society, inspect and use information relating to adoption. Thus, complete
strangers to the adoption can access the files of adopted persons, while the
adopted persons themselves cannot. From the point of view of adopted persons,
this is an affront to their dignity. It tells them that they are less valued
members of Canadian society.

Child and Family Service Act, supra, section 165(4)

Section 15 as it applies to the Registrar of Adoption Information
116. Adopted persons bear the burden of spending years of their lives
searching for the answers to questions that non-adopted persons know since
childhood. The government withholds information about adopted persons from
those persons unless they request it, placing the onus on adoptees to search
(and pay fees to obtain) information which was taken from them at birth without
their consent. Adopted persons, unlike non-adopted persons, must justify to
civil servants their entitlement to access information about themselves. It is
worth noting that, even while placing the onus on adoptees to request the
information, the province makes absolutely no effort to raise public awareness
about the ADR or the records kept by the Vital Statistics Office in Ontario.
For instance, the CCAS has observed that many adoptees are surprised to learn of
the ADR. The state's apparent lack of concern about optimizing adoptees'
ability to exercise their already narrowly-circumscribed rights is troubling.

O'Reilly transcript, page 26, lines 11 to 15 Transcript brief, tab G

MacInnes transcript, page 60, line 18 to page 61, line 21 Transcript brief, tab
H

117. The requirement of a birth relative's consent before the release
of identifying information adds to the discrimination against adopted persons.
No other class of individuals, in the absence of orders related to criminal
activity (such as restraining orders and peace bonds), requires the consent of
another person to contact them. An adoptee can contact anyone in the world,
except his birth relatives if they have withheld consent. In this way, the
state interjects itself into the most private of human relationships.

Child and Family Services Act, supra, section 167

118. The other situation in which identifying information may be
disclosed - "health, safety and welfare" requests - is also discriminatory to
adoptees. It places the onus on adopted persons to prove that they "deserve" to
receive identifying information about their earliest origins, information which
non-adopted persons take for granted. ADU staff, who have no medical or other
expertise, undertake the task of assessing the statements medical practitioners
treating the adoptees. Even though a medical professional may certify that an
adopted person is suffering so much from a lack of identity that she is
suicidal, ADU staff may refuse to release identifying information without
explaining why it has rejected the medical professional's opinion. In essence,
untrained civil servants have the power to make decisions that impact upon
matters of life and death without any due process or transparency.

Please see paragraphs 43 to 45 and 80 to 81, above.

119. Even when the legislative hurdles to the release of information
have all been overcome, the Registrar of Adoption Information can nonetheless
refuse to disclose information to adoptees or birth relatives if, in his or her
opinion, the disclosure may result in "serious physical or emotional harm to any
person". This legislative restriction promotes an unfounded stereotype that
adoptees and their birth parents are predisposed to irrational violence.
Further, it places another layer of inequality on adoptees: if a non-adopted
person causes another person to fear for his safety, criminal harassment laws
may be invoked by the alleged victim for protection. With respect to birth
relatives and persons who were adopted, the state adds an extra buffer to
protect members of the adoption triad from one another. There is no evidence
that the Criminal Code or other laws of general application would not suffice to
meet any legislative concern in this regard.

Child and Family Services Act, supra, section 171

120. The fact that non-identifying information is released to adopted
persons in the form of a "social history" is a serious affront to their dignity.
It could be released in redacted form, but it is not. An adoptee's
understanding of his or her identity depends on the turns of phrase chosen by
the CCAS staff when writing this narrative. It is infantilizing and
unacceptable that the state filter the most crucial facts about an adopted
person's life through the sanitizing pen of a social worker.

Please see paragraphs 21, 36 and 74, above.

121. To the extent that children's aid society records contain
medical records relating to the child's pre-adoption health, adopted persons are
denied access to them. These are the same medical records that the Supreme
Court has established that any person is entitled to access. The applicant
submits further that the nature and quality of non-medical records maintained by
the provincial government and children's aid societies in the context of
adoption is not materially different from that of medical records maintained by
doctors and hospitals. All individuals should have the same a right of access
to such records regardless of adoption.

McInerney v. McDonald, [1992] 2 S.C.R. 138

122. Further discrimination accrues to adoptees at the administrative
level in the implementation of the legislation. Due to the arbitrary exercise
of administrative discretion, adoption disclosure laws are unevenly applied
within the class of adopted persons. With respect to non-identifying
information, some examples of such inequality are as follows:

(a) The definition of "non-identifying information" in section
166 of the CFSA imports an uncertainty that inevitably leads to inequality.
Non-identifying information is defined as anything that is not identifying
information or "information, alone or in combination with other information,
[that] will in the circumstances reveal the identity of the person to whom it
relates" [emphasis added]. Thus, a person whose birth mother came, for
instance, from a small town in Ontario would likely be entitled to less specific
information than a person whose birth mother came from Toronto. Likewise, a
person whose birth father had a rare or high-profile job would be less able to
access information than a person whose birth father was a student or a clerk at
a grocery store. The legislation also requires staff to consider what
information the adoptee already has, in order to determine whether certain
information will be identifying "in combination". This means that an adoptee
who tells the CCAS staff that he knows nothing about the circumstances of his
birth or adoption will receive more complete information than an adoptee who
says she already has some clues.

(b) The amount and quality of non-identifying information that is
recorded about an adoptee's birth relatives varies according to the practice,
diligence and attention to detail of the intake worker who interviews the birth
mother at the time of the adoption.

(c) When an adoptee applies for the release of non-identifying
information, there is a three to six-month waiting period for such release by
the CCAS. This waiting period may vary among different children's aid societies
and private adoption agencies.

(d) Adoptees who have the financial resources to hire private
detective agencies can use non-identifying information to locate their birth
parents, while adoptees of more modest means cannot.

Please see paragraphs 72 to 74, above.

123. Adopted persons also have differential access to identifying
information through the ADU's search and reunion process, including, but not
limited to the following examples:

(a) Although it is nowhere limited by statute, the ADU only
performs one search for a registrant at a time.

(b) The statute does not limit the number of search requests that
a registrant can make among the prescribed classes of persons for whom the ADU
can search. However, the ADU does not allow registrants to have more than one
search. This arbitrary use of power means that an adoptee who is "lucky" the
first time is privileged by the state over an adoptee whose birth relative
cannot be found or refuses consent to disclosure.

(c) If an adopted person and her birth mother are both named in
the ADR and both consent, identifying information may be exchanged between them.
However, if one birth parent refuses to permit disclosure and the other birth
parent is subsequently found through the ADR's search process and consents to
disclosure, the Registrar of Adoption Information may refuse disclosure. In
effect, there may be situations where the refusal of one birth parent can trump
the consent of the other.

(d) Similarly, if a birth mother was not registered in the ADR
but a birth grandmother was, the Registrar of Adoption Information could refuse
to disclose identifying information even though the adoptee and grandmother
consented, for fear of revealing the birth mother's identity against her will.
The same applies to situations where a birth father does not want his identity
revealed but identifying the birth mother to the adoptee would necessarily lead
to his discovery. This inequality arises through the practical application of
section 167 of the CFSA.

(e) Section 167(10) of the CFSA provides that if the Registrar of
Adoption Information searches for a birth relative and finds that the person has
died or cannot be found within six months, then the Registrar may disclose
identifying information without that person's consent. For example, an adoptee
may receive identifying information about his dead birth mother, use it to track
down other members of his maternal birth family and be told by them the identity
of his birth father. Conversely, an adoptee whose birth mother is alive but
does not give consent to disclosure cannot have any identifying information.

(f) It remains unclear what other categories of information
related to an adopted person's original identity are sealed or altered by
societies or licensees acting under the CFSA. As described above, the CCAS, in
an over-zealous approach to confidentiality in adoption disclosure, goes so far
as to alter baptismal registers to entrench the state purpose of hiding an
adopted child's original identity. Hospital registers are also arbitrarily
altered to establish the fiction that an adoptive mother was admitted to
hospital and gave birth to a baby.

O'Reilly transcript, page 74, line 7 to page 75, line 6 Transcript brief, tab G

Please also see paragraphs 75 to 82, 110, above.

124. In sum, the applicant submits that the denial of
adoption-related information to adopted persons is discriminatory and infringes
section 15(1) of the Charter.

B. If Charter rights are infringed, are the infringements demonstrably
justified in a free and democratic society?

125. Where an infringement of the Charter has been proven by the
claimant, the burden shifts to the government to justify that infringement under
section 1 of the Charter on a balance of probabilities. First, the limits must
be "prescribed by law". If that hurdle is met, the further requirements of this
defence are:

a. the legislative objectives giving rise to the limitation must be a
pressing and substantial concern of sufficient importance to warrant overriding
a constitutional right;

b. the means chosen to attain those objectives must be proportional or
appropriate to the ends in three respects:

i. the limiting measures must be rationally connected to the objective;

ii. they must impair the right as little as possible; and

iii. the benefits which accrue from the limitation must be proportional to
its deleterious effects.

R. v. Oakes, [1986] 1 S.C.R. 103

126. Each of these elements will be considered in turn.

Are the limits prescribed by law?

127. The rights and freedoms protected by the Charter are guaranteed
subject "only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society." The Supreme Court of Canada has
interpreted this to mean that a limit of a constitutional right or freedom can
only be justified pursuant to section 1 once it has first been established that
the limit is "prescribed by law." Any limit on a Charter right that is not
prescribed by law is unconstitutional.

Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69

128. This part of the analysis engages the question of whether the
legislature has provided an intelligible standard according to which the
judiciary must do its work. Where there is no intelligible standard and where
the legislature has given a plenary discretion to do whatever seems best in a
wide set of circumstances, there is no "limit prescribed by law". In Osborne,
Mr. Justice Sopinka held that:

A law may be so uncertain as to be incapable of being interpreted so as to
constitute any restraint on governmental power. The uncertainty may arise . . .
from the generality of the discretion conferred on the donee of the power . .
.[i]n these circumstances, there is no "limit prescribed by law" and no s. 1
analysis is necessary as the threshold requirement for its application is not
met. . .

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 983

Osborne, supra at 94

129. In R. v. Nova Scotia Pharmaceutical Society, Mr. Justice
Gonthier examined the issue of vagueness. Gonthier J. wrote that an
impermissibly vague provision is one that "does not provide an adequate basis
for legal debate." He explained:

The criterion of absence of legal debate relates well to the rule of law
principles that form the backbone of our polity . . . [w]hat becomes . . .
problematic is not so much general terms conferring broad discretion, but terms
failing to give direction as to how to exercise this discretion, so that this
exercise may be controlled. Once more, an unpermissibly vague law will not
provide a sufficient basis for legal debate; it will not give a sufficient
indication as to how decisions must be reached, such as factors to be considered
or determinative elements. In giving unfettered discretion, it will deprive the
judiciary of means of controlling the exercise of this discretion. [emphasis
added]

R. v. Nova Scotia Pharmaceutical Society, [1992], 2 S.C.R. 606 at page 642

130. In the case at Bar, the legislature has conferred broad
discretion on the Registrar General and Registrar of Adoption Information while
giving no direction as to how to exercise that discretion. While the ADU
purports to act under guidelines established by the Ministry[30] courts have
taken a dim view of guidelines under the "prescribed by law" analysis. While a
reasonable limit that is "prescribed by law" may be found in statutory law,
regulations and even common law, the limit, to be acceptable, must have legal
force. Guidelines established by an administrative tribunal for the exercise of
its power to censor films have no legal status. Any limits placed on freedoms
cannot be left to the whim of an official and such limits must be articulated
with some precision or they cannot be considered to be law.

Ontario Film and Video Appreciation Society v. Ontario Board of Censors (1983),
147 D.L.R. (3d) 58 (Ont. Div. Ct.), aff'd (1984), 5 D.L.R. (4th) 766 (Ont. C.A.)

131. In Committee for the Commonwealth of Canada, the Supreme Court
considered whether the government's action to prohibit advertising or soliciting
at airports was a limit "prescribed by law", where the regulations on point were
not explicit and the airport officials were acting pursuant to the Crown's legal
rights as owners of premises. The majority held that this was not a limit
prescribed by law. Lamer and Sopinka JJ. held that:

In my opinion, the limitation imposed on the respondents' freedom of expression
arose from the action taken by the airport manager, a government official, when
he ordered the respondents to cease their activities. Although this action was
based on an established policy or internal directive, I do not think it can be
concluded from this that there was in fact a "law" which could be justified
under s. 1 of the Charter. The government's internal directives or policies
differ essentially from statutes and regulations in that they are generally not
published and so are not known to the public. Moreover, they are binding only
on government officials and may be amended or cancelled at will. For these
reasons, the established policy of the government cannot be the subject of the
test under s. 1 of the Charter. [emphasis added]



L'Heureux-Dube J. (Cory J. concurring on this point) held that the impugned
provision failed to offer an intelligible standard that would enable the citizen
to regulate his or her conduct. She adopted Wilson J.'s ruling in McKinney v.
University of Guelph:

Section 1 . . . serves the purpose of permitting limits to be imposed on
constitutional rights when the demands of a free and democratic society require
them. These limits must, however, be expressed through the rule of law. The
definition of law for such purposes must necessarily be narrow. Only those
limits on guaranteed rights which have survived the rigours of the law-making
process are effective. [emphasis added by L'Heureux-Dube J.]

Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 at 164
and 211 to 214

132. It is submitted that the manner in which the government's
actions limit the constitutional rights of adopted persons fails to conform with
the rule of law since it is not based on any articulated legal rule. Instead,
it represents the exercise of an unfettered discretion made by administrators
and civil servants who are guided by no more than stereotypes about adopted
persons.

Please see paragraphs 55 to 83 and 116 to 123, above.

133. With respect to administrative actions pursuant to the VSA, the
applicant submits that the Registrar General's actions are not prescribed by law
insofar as they limit the release to adopted persons of unsealed original birth
registrations. The Registrar General admits that her authority is unaffected by
the provisions of the CFSA. Nothing in the CFSA prohibits the release of
information by the Vital Statistics Office: the confidentiality provision in
section 165(1) applies only to listed classes of information relating to the
adoption, of which the information kept by the Vital Statistics Office is not
one. Nevertheless, the Registrar General does not release unsealed original
birth registrations in order to prevent a circumvention of the disclosure
requirements under the CFSA. It is submitted that the Registrar General, in
withholding unsealed original birth records from adoptees, is acting without
legislative authority.

Please see paragraphs 63 to 66, above.

134. The Registrar General did point to section 44(1) of the VSA,
which enables her to release birth registrations upon provision of evidence and
reasons for the request satisfactory to her. There is no legislative direction
on what "reasons", or even what governing set of principles, will be
satisfactory. As described above, the application form for the request of a
birth registration simply asks the person requesting the birth registration to
specify the reason for the request and gives no direction to an adopted person
on what reasons may satisfy the Registrar General. On cross-examination, the
Registrar General herself was unable to articulate any governing principles for
her decisions as to whether any particular reason would suffice. She is guided
by no written policy with respect to this discretionary power. It appears that
she simply reacts to each situation as it arises.

Please see paragraphs 64 to 67, above.

135. The same can be said of the Registrar of Adoption Information.
The exercise of her discretion is unprincipled, inexplicable and discriminatory.
She and her staff are untrained and unguided in making determinations that
strike at the heart of human dignity and which profoundly affect physical and
mental health.

Please see paragraphs 69 to 83, above.

Are the legislative objectives behind the limits of sufficient concern to
justify the infringement?

136. The legislative objectives giving rise to the limitations on
access to information by adopted persons can be summed up in a word: shame.
Legislators believed that birth parents were ashamed of unplanned pregnancies
and required secrecy. They believed that adoptive parents required secrecy to
be safe from the birth mother's interference and to feel entitled to their
child. They believed that adopted children would be ashamed of their
illegitimacy. It is respectfully submitted that these beliefs were myths at the
time that limits on adoption disclosure were imposed and that they are entirely
irrelevant today. Such unsubstantiated concerns do not meet the standard of
being "pressing and substantial" and sufficiently important to warrant
overriding the constitutional rights of adopted persons.

137. The best interests of the child and the right to know one's
parents expressed in the CRC is discussed above. The Supreme Court has held
that Canada's international human rights obligations should inform not only the
interpretation of the content of the rights guaranteed by the Charter, but also
the interpretation of what can constitute pressing and substantial section 1
objectives which may justify restrictions upon those rights. The fact that a
value has the status of an international human right should be indicative of a
high degree of importance attached to that objective.

Please see paragraphs 90 to 92, above.

Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825

138. The creation of fictitious birth records is a practice which has
little to do with the best interests of the child but has everything to do with
secrecy. As Evelyn Robinson writes:

I cannot understand why legislation still exists which allows children to be
issued with replacement birth certificates, which is a fabrication. It is
offensive to natural parents to find that both their existence and their
experience are so easily obliterated with the stroke of a pen. Adopted people
also object to their original details being officially erased.

Robinson supplementary affidavit, paragraph 13 Application record, volume 2,
tab 7, page 609

139. Adoption historian E. Wayne Carp, a Crown witness in this
application, noted that the best interests of the child have been totally
forgotten in the argument respecting sealed adoption records. Sealed records,
instituted to frustrate extortionists, were perpetuated by the myth that birth
mothers would come after children and interfere with adoptive parents' raising
of their children. He testified that he is not aware of any instance in history
in which a birth mother came after her adopted children.

Carp transcript, page 83, lines 1 to 13 and page 85, line 25 to page 86, line 8
Transcript brief, tab I

140. The current social climate does not support the legislative
goals of protecting members of the adoption triad from shame and the focus of
domestic and international law has shifted to the interests and welfare of the
adopted child. The phenomenon of unmarried women seeking to hide their
pregnancies is now practically non-existent. Cases in which birth parents
request that their identities be kept confidential are now rare exceptions.

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, page 309 and 325

Letter to the editor of the National Post from Evelyn Robinson dated June 16,
2005 Application record, volume 2, tab 7D, page 647

O'Reilly transcript, page 14, line 21 to page 15, line 10, page 15, lines 15 to
20 and page 33, lines 18 to 23 Transcript brief, tab G

141. Another rationale often advanced for the limits on adoption
disclosure is that members of the adoption triad may cause harm to one another.
The evidence in this case has established that such beliefs are unsubstantiated
stereotypes. In jurisdictions where adoption records are open (including other
Canadian provinces, New South Wales, England and Scotland and Oregon), analysts
have seen no incidences where adoptees cause physical or emotional harm to their
birth parents.[31] Likewise, Ontario authorities have not observed any
incidences of harm consequent upon the disclosure of identifying information to
birth parents or adoptees.

O' Reilly transcript, page 85, line 23 to page 86, line 6 and page 86, lines 4
to 10 and page 87, lines 11 to 18 Transcript brief, tab G

Cross-examination of Marla Krakower held on November 3, 2005, page 19, line 3 to
line 6 and page 7, line 17 to 21 Transcript brief, tab F

Carp transcript, page 69, line 12 to page 70, line 25 Transcript brief, tab I

142. In sum, the purpose of the secrecy provisions are based on
beliefs which have always been inaccurate about adoptees and birth parents and
which, in any event, are now long outdated. It is submitted that the legislative
objective is not pressing and substantial, or even proper.

Is there a rational connection between the limiting measures and the legislative
objective?

143. In the absence of evidence of a legislative objective that is
pressing and substantial, it is difficult to address this particular issue. The
applicant proposes to address this issue in oral argument following receipt of
the respondents' factums.

Do the limits minimally impair the rights of adopted persons?

144. To be reasonable and demonstrably justified, the limits on
adoption disclosure must impair the rights of adopted persons as little as
possible. Laws will fail the minimal impairment component of the section 1 test
if there are measures "clearly superior to the measures currently in use".

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569

145. The means chosen by the legislature to achieve its goals are
crude and overbroad. The sealing of an original birth registration, if intended
to protect the privacy of a birth parent as against the general community,
serves to keep their identities secret even from their own child. The
fictitious birth record, created to reflect the exclusivity of custody rights of
the adoptive parents, similarly serves to deprive the child of crucial
information for the duration of his or her live.

146. Other common law jurisdictions have adopted a different
approach. In South Australia, for example, adoptive parents may have their names
added to the child's original birth certificate such that all four names - of
the birth parents and of the adoptive parents - appear on the same document,
which is the child's legal birth certificate.

Robinson supplementary affidavit, paragraph 14 Application record, volume 2, tab
7, page 609

147. In Scotland, as discussed above, a birth certificate is issued
listing adoptive parents under "names of the adopters", thereby avoiding the
legal fiction that the child is the biological child of the adoptive parents.
This Act allows adopted persons, age 16 or over, to obtain a copy of their
original birth registrations that contains details of their birth parents.
Adult adoptees are entitled to view the court papers relating to their
adoptions.

Adoption (Scotland) Act 1978

148. The impugned laws are also overbroad in that, insofar as
disclosure is permitted by the adoption regime, disclosure is limited to adult
adoptees or minor adoptees with the written consent of an adoptive parent. The
legislative objective in imposing this restriction is to protect the exclusive
entitlement of adoptive parents to their child. This objective is a clear
contradiction to the best interests of the child standard in other aspects of
family law. Children as well as adults have the desire to know their origins
and experts, as well as the ADU, have observed that identity crisis with respect
to adoption often manifests itself during adolescence. It is not difficult to
envision a situation where a minor child desperately wishes to know about his
original identity, but his adoptive parents refuse to grant consent or the
child, having been raised in an atmosphere of secrecy, is too afraid to ask his
adoptive parents for their consent. This is an unjust burden to place on a
child. The law should allow a child, whenever she has the capacity to express a
desire to search for her identity, to have unrestricted access to the true facts
about her birth.

Child and Family Services Act, supra, section 166(4)1

Please see paragraphs 91 and 137, above.

Tralee Pearce, "Who's My Daddy" The Globe and Mail (June 18, 2005), page F12
Application record, volume 2, tab 5B, page 401

149. Another example of a less restrictive measure is the change of
name procedure for non-adopted persons pursuant to the Change of Name Act and
VSA, already in force in Ontario. This statutory regime would treat the change
of name upon adoption in an equal manner as other changes of name, so that the
original birth registration is not sealed and the adopted person receives a
change of name certificate showing his or her original name.

Please see paragraph 114, above.

150. In Oregon, Measure 58 permits identifying information respecting
birth relatives to be disclosed to adopted persons but the wishes of birth
relatives respecting whether they wish to be contacted are registered. In the
opinion of government expert Professor Carp, Measure 58 is a model piece of
legislation.

Carp transcript, page 68, line 23 to page 70, line 25 Transcript brief, tab I

151. The least restrictive measure is to allow members of the adoption
triad access to identifying information in the original birth registration or
adoption records unconditionally. This approach has been embraced in three
American states: Alabama, Alaska and Kansas.

E. Wayne Carp, "A Comparative History of the Open Adoption Records Laws of
Ontario, Canada, with the Laws of Other English-Speaking Countries" at page 12
and footnote 44 Application record, volume 3, tab 9C, pages 695 and 722

Are the benefits of the limits proportional to their deleterious effects?

152. The last stage of the proportionality analysis provides an
opportunity to assess, in light of the practical and contextual details which
are elucidated in the first and second stages, whether the benefits which accrue
from the limitation are proportional to its deleterious effects as measured by
the values underlying the Charter. While the first three stages relate to
reasonableness of the legislation itself, the fourth examines the nature of the
infringement and asks whether its costs outweigh its benefits. The implication
of finding a violation at the fourth stage is that even a minimum level of
impairment is too much: the costs to the claimant so outweigh the benefits that
no solace can be found in the fact that the legislation violates the Charter "as
little as reasonably possible". Moreover, if the costs of the legislation are
significant enough and the legislation only partially achieves its objectives,
greater evidence of its benefits may be necessary in order to survive the
section 1 analysis.

Thomson Newspapers v. Canada (Attorney General), [1998] 1 S.C.R. 877

Lavoie v. Canada, [2002] 1 S.C.R. 769

153. The impact of the legislation upon the adoptee is the reverse of
its intention. Rather than shield the adoptee from shame, the secrecy and
silence exacerbate shame. The psychological and emotional costs of limits on
adoption disclosure to adopted persons have been enumerated at length at
paragraphs 93 to 99, above. Some experts have opined that when it comes to
adoption disclosure, there are no competing interests involved. Parents and
their children are all damaged by the separation which occurs when an adoption
has taken place, and legislation should provide scope for the pain of separation
to heal and the formation of identity to occur.

Evelyn Robinson, "The Impact on Adopted People of Legislation Relating to
Adoption and the Release of Adoption Information", supra paragraph 15
Application record, volume 2, tab 4B, pages 309 to 310

154. Opponents to open adoption records have asserted that the rights
of the adopted child should be balanced against the rights of birth parents to
privacy. This argument is flawed. Such opponents are really asking for a right
to anonymity from their own biological children. Adopted persons are not
seeking to have records which reveal identifying information about their parents
open generally for public inspection. They are simply asking that they
themselves have access to records pertaining to their own identities.

155. In any event, privacy per se is not a Constitutional right. The
Charter only protects an individual's reasonable expectation of privacy from
unjustified state intrusion for the purposes of criminal or administrative
investigation.

Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708

156. Dr. Smith, an expert for the Crown, opined that alleged promises
of confidentiality to birth mothers and the rights of adoptive parents to
exclusivity should be balanced against the rights of adopted children. In his
view, protection of the adoptive parents is "of paramount importance, symbolized
by the sealing of birth records and the issuance of a new birth certificate."
When pressed to answer whether the best interests of the child is ultimately
more significant than a notional contract of confidentiality with the birth
mother, Dr. Smith testified that the contract with the birth mother must be
given serious consideration.

Smith transcript, pages 43 to 45 and page 79, lines 6 to 16 Transcript brief,
tab D

Jerome Smith and Franklin Miroff, You're Our Child: The Adoption Experience
(Madison Books: Lanham, MD, 1987), at pages 7 and 176 Transcript brief, tab A11

157. Dr. Smith's views do not coincide with those of contemporary
Canadian society, with general Canadian jurisprudence or with international
law.[32] The rights of the child are of paramount importance and the right of
each person to pursue their identity and realize their human dignity is
fundamental.

158. For the above reasons, it is submitted that the limits on
adoption disclosure are not reasonable and demonstrably justified limits on the
rights of adopted persons.

C. If the infringements are not demonstrably justified, what is the appropriate
remedy?

159. This issue comprises three sub-issues, each of which will be
considered in turn:

(a) Should declaratory relief be granted?

(b) Can the infringements be remedied by reading exemptions into the Child
and Family Services Act and the Vital Statistics Act?

(c) Should the Court order the respondents to produce to the applicant
certain documents and information?



Declaratory Relief


160. The primary remedy available under section 52 of the
Constitution Act, 1982 is a declaration that the law is of no force or effect,
commonly referred to as striking down. Section 52(1) of the Constitution Act,
1982 reads as follows:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that
is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.



Constitution Act, 1982, section 52(1)





161. The specific declarations sought by the applicant are set out in
the notice of application and repeated below in the relief requested at
paragraphs 172, below. This form of relief predates the Charter and is the
natural consequence of a finding of a breach of the Constitution.

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.)



Reading in and Severance

162. In some circumstances, where legislation is over-inclusive or
under-inclusive and it can be safely assumed that the legislature would have
remedied the infringement in a particular manner, it is open to the Court to
sever portions or read in amendments to the legislation. The ability to do so
will depend on the clarity of the legislative objective, as revealed through the
evidence put forward in favour of the failed section 1 argument.

Schachter v. Canada, [1992] 2 S.C.R. 679 at page 720

163. In the case of sealed adoption records, an amendment would be
required to the CFSA exempting adopted children and birth parents from the
general prohibition against disclosure of records following adoption. The VSA
provisions respecting adoption could simply be eliminated such that name changes
could be carried out in the same manner as non-adoption-related name changes,
without creating substitute birth registrations.

164. If the government proposes to amend the legislation by some
other means that will meet the Court's constitutional concerns, this too can be
considered. If, however, the legislature is to be afforded an opportunity to
redraft the legislation, the Court's concerns ought to be set out clearly and
specifically in its reasons so as to afford the legislature as much guidance as
possible.

Suspending Declarations of Invalidity

165. The government may seek, upon the making of a declaration of
invalidity, that the Court temporarily suspend the declaration to allow the
legislature time to craft appropriate replacement legislation. Such relief is
not appropriate, however, where the legislative purpose is unimportant or is, in
itself, offensive to the Charter.

R. v. Morgentaler, [1988] 1 S.C.R. 30

166. The legislature has recently addressed disclosure of adoption
information in legislation that comes into force in 2007. Specifics are
discussed below at paragraphs 170 and 171.

Adoption Information Disclosure Act, 2005, S. O. 1990, c. 25

167. Persons searching for birth relatives should be required to wait
no longer. Nor should they be subject to new hurdles under the
presently-incubating legislation. If they are required to wait or should they
fall under a new legislative regime before they receive their records, they will
suffer harm that may be irreparable. Wherever possible, adoptees and birth
parents should be spared the applicant's experience of learning of their birth
relatives' names together with news of their deaths.

Please see paragraph 38, above.

Constitutional Exemption

168. Even if there is a suspension of the declaration of invalidity,
the applicant's entitlement to the relief sought in the application should be
apparent no matter what legislative regime is put in place by the government.
On this basis it is open to the Court to grant a constitutional exemption,
applicable to the applicant alone, such that she be granted the relief sought
without delay.

R. v. Guignard, [2002] 1 S.C.R. 472

169. Individual relief can also be granted, without restriction,
under section 24(1) of the Charter.

Charter, supra, section 24(1)

The Adoption Information Disclosure Act, 2005

170. As noted above, the Adoption Information Disclosure Act, 2005
(AIDA), will come into force some time in 2007. While this legislation is a
significant step towards opening adoption records, it falls short of what would
respect the human dignity and equality rights of adoptees. The creation of
fictional substitute birth registrations under the VSA is unchanged by the AIDA.
The AIDA does not guarantee adoptees access to identifying information
respecting their birth parents, but carves out discretionary exceptions where it
is established that there is a risk of serious physical or emotional harm. It
also stigmatizes adoptees and birth relatives by creating offences and
substantial penalties applicable uniquely to them for breach of a contact
vetoes, in the absence of evidence of any risk of such a phenomenon.

Adoption Information Disclosure Act, 2005, supra, sections 9 and 12

171. Even under the AIDA, the applicant would continue to be denied
access to:

(a) identifying information about the man named by her mother as
her father;

(b) the records pertaining to her Crown wardship;

(c) the records pertaining to her deceased mother's Crown
wardship;

(d) all documents pertaining to her adoption; although some
documents were sent to her in March 2001, the respondents continue to deny the
release of the complete file, including information that would identify the man
named as her father;

(e) all other information respecting her maintained by the
defendants; because of the veil of secrecy and her experience that information
will be kept from her unless she requests it, the applicant has no way other
than this application of determining what other documents and information are
held by the respondents respecting her and her birth relatives.

Supplementary affidavit of applicant, paragraphs 30 to 32 Application record,
volume 2, tab 5, page 396

MacInnes affidavit, paragraph 33 Application record, volume 4, tab 13, page 1070

PART V - NATURE OF THE ORDER SOUGHT
172. The applicant seeks the following relief:

(a) a declaration that the scheme propounded by sections 161 to
174 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 in combination
with the adoption provisions of the Vital Statistics Act, R.S.O. 1990, c. V. 4
is unconstitutional and of no force and effect;

(b) a declaration that sections 28(2), 28(3), 28(4) and 28(5) of
the Vital Statistics Act, R.S.O. 1990, c. V.4 are unconstitutional and of no
force and effect;

(c) an order that the respondents forthwith produce to the
applicant, on an expedited basis, the following documents and information:

(i) the identity of the man named by her mother as her father;

(ii) all records pertaining to her Crown wardship;

(iii) all records pertaining to her deceased mother's Crown
wardship;

(iv) all documents pertaining to her adoption; and

(v) all other information respecting her maintained by the
defendants;

(d) her costs of this application on a substantial indemnity
basis; and

(e) such further and other relief as this Honourable Court deems
just.



All of which is respectfully submitted.











Marshall A. Swadron











Kelley J. Bryan



Counsel for the applicant



--------------------------------------------------------------------------------

[1] Adoption of Children Act 1926, 16 & 17, Geo. 5. c. 29. This Act applied
only to England and Wales; a separate statute was passed in Scotland in 1930.

[2] In the case of the applicant's birth mother, she planned to raise her baby
but found herself without the financial resources or support to do so. The
applicant, who has an honours degree in Anthropology and Women's studies,
describes this phenomenon as reproductive imperialism, meaning that rich white
women take poor women's babies and hire other poor women to raise these children
(just as patriarchy is reproductive imperialism): see cross-examination of
applicant held on October 24, 2005, page 26, lines 3 to 9 Transcript brief, tab
B. It is her position that adoption, whatever its other rationales, should not
be a solution to poverty.

[3] Adoption of Children (Scotland) Act, 1930, 20 and 21 Geo, 5., c. 37.

[4] The forms at that time requested information respecting the husband rather
than the father. An unmarried woman would have no choice but to leave that
section blank. The current forms require particulars of the father of a child:
see cross-examination of Judith Hartman held November 3, 2005 (Hartman
transcript), page 8, lines 2 to 7 Transcript brief, tab E.

[5] Social theories of the time that supported this approach included the idea
that adoptive parents would not bond with a child unless they were ensured
"parental entitlement"; that is, an assurance that the child belonged to them
unconditionally and exclusively: see Jerome Smith and Franklin Miroff, You're
Our Child: The Adoption Experience (Madison Books: Lanham, MD, 1987) at 7 and
176 Transcript brief, tab A11. Put forward as a Crown expert, Dr. Smith
indicated in cross-examination that the use of the possessive term "our" in the
title of this book was intentional and reflects this parental entitlement.

[6] A substitute registration would also have resulted if the applicant had
requested a long form birth certificate. She would have been required at that
time to submit a substitute registration showing her adoptive parents as her
birth parents, at which time her original birth registration would have been
sealed. The applicant nearly did so inadvertently at the invitation of the
Ministry of Consumer and Business Services (now the Ministry of Government
Services) staff in 2001: see the applicant's affidavit, paragraph 54
Application record, volume 1, tab 2, page 20.

[7] The applicant's location of the adoption order was by chance. She had no
legal entitlement to a copy of the order because such orders are generally
sealed in the custody of the Court or the Registrar, even from an adoptee: see
Child Welfare Act, S.O. 1954, c. 8, s. 66(4) and 81. The 1958 amendments to the
Child Welfare Act provided that the original adoption order would be transmitted
to the adopting parent, but made no provision for access by the adoptee: see
sections 70 and 71.

[8] The additional requirement in Ontario that an adult adoptee's adoptive
parents consent to the release of identifying information respecting birth
relatives appears practically unique among passive registries.

[9] Dr. Garber holds a Doctorate of Social Work degree and was at the time the
Dean of the Faculty of Social Work, University of Toronto. The extensive scope
of the commission's inquiry is detailed at pages 2 to 5 of his report
Application record, volume 4, tab 12A, pages 906R to 908.

[10] Dr. Garber urged acceptance of the recommendation on the grounds, inter
alia, that the equality provisions in the Charter demanded it. The opening of
records to adoptees and birth parents was also noted by Professor Carp as being
supported in the Legislature by Richard Johnston, who was at the time the Chair
of the Standing Committee on Social Development Application record, volume 3,
tab 9C, page 704.

[11] In the Greater Toronto Area there are four societies (CCAS, Children's Aid
Society of Toronto, Jewish Child and Family Services, and Native Child and
Family Services) and various licensed private agencies: see O'Reilly transcript,
pages 11 and 17 to 18 Transcript brief, tab G.

[12] The CFSA does not limit the release of information kept by other
Ministries.

[13] Astonishingly, the information package respecting re-registration of birth
of an adopted child given to adoptive parents by the Office of the Registrar
General is incorrect on this point. It tells them that if they decide not to
re-register the child's birth, the original birth registration is sealed. This
gives adoptive parents the erroneous impression that, regardless of whether they
choose to re-register an adopted child, the original birth registration is
sealed: Hartman transcript, page 27, lines 15 to 19 and answers to undertakings
Transcript brief, tabs E and M.

[14] She testified that the Registrar General is the Minister of Government
Services, so that she is the highest-ranking officer on the administrative side
in the Vital Statistics Branch: see Hartman transcript, page 5, lines 2 to 14.

[15] The Registrar of Adoption Information was a Crown witness on this
application. She was appointed in October 2004. Her prior experience with the
Ministry was as a policy analyst and program supervisor. She had previously
worked for a children's aid society but not in the area of adoption and as the
executive director of an agency that served expectant parents. She held a
Bachelor of Arts degree in Psychology from McMaster University and a child and
youth worker certificate from George Brown College. She received no particular
training prior to being charged with responsibility for making discretionary
decisions under the CFSA: MacInnes transcript, page 4, lines 9 to 10; page 8,
lines 12 to 17; page 9, lines 1 to 13 and page 64, line 24 to page 65, line 2
Transcript brief, tab H.

[16] For instance, the Registrar of Adoption Information's evidence was that
diligence in keeping information has generally been weaker in the case of
private adoption agencies: MacInnes transcript, page 50, lines 16 to 22
Transcript brief, tab H.

[17] There are presently 4,000 active search requests in progress: see MacInnes
transcript, page 71, lines 13 to 15 Transcript brief, tab H.

[18] Employees in the ADU have no particular qualifications. Their job
description is to process application forms and work with databases. MacInnes
transcript, page 15, lines 1 to 18 Transcript brief, tab H.

[19] His name is Dr. Greg DeMarchi: MacInnes transcript, page 25, lines 1 to 7
Transcript brief, tab H.

[20] The Registrar maintained, however, that she retained discretion not to
disclose information as well, in the absence of any medical expertise, depending
on all of the circumstances.

[21] An unacknowledged birth father is one who is identified by the birth
mother, or otherwise, but who has not formally acknowledged paternity.

[22] Children under the age of seven may be adopted without their consent.
Children seven years of age or older generally cannot be adopted without their
written consent (and the names of children twelve years of age or older cannot
be changed without their consent) but the court can dispense with that
requirement if obtaining the consent would cause the child "emotional harm": see
the Child and Family Services Act, supra, sections 137 and 153.

[23] Canada made two reservations and a statement of understanding with respect
to its ratification of the CRC. Unlike other countries with sealed records
systems, none of those reservations limited an adopted child's rights under the
CRC: see the United Nations Treaty Collection, online:
www.unhchr.ch/html/menu3/b/treaty15_ asp.htm The significance of the treaty was
recognized by the Supreme Court in Baker v. Canada, [1999] 2 S.C.R. 817.

[24] It is this openness, rather than reunion per se, that allows an adoptee to
pursue her own identity in the same way as non-adopted persons can.

[25] An analogy could be that the government should not ban access to historical
documents for non-adopted persons to compile family trees, simply because some
people are not interested in genealogical research. In the field of adoption,
Evelyn Robinson has explored the reasons why adoptees or birth relatives may be
uninterested in or refuse reunion, despite the loss inherent in every adoption:
Application record, volume 2, tabs 7B and 7C. The CCAS has also observed that
there are situations where an adoptee may not be interested in seeking
information about birth relatives but the adoptee's spouse desires such
information, perhaps for the benefit of their own children: O'Reilly transcript,
page 94 Transcript brief, tab G.

[26] This belief about a secret name is a component of many First Nations
cultures but is not recognized in Ontario's adoption regime as it applies to
aboriginal children.

[27] The analysis of whether the deprivations are "in accordance with the
principles of fundamental justice" will be considered below as part of the
section 1 discussion.

[28] The phenomenon of placement of Native children, such as the applicant, for
adoption in non-native homes has been termed the "sixties scoop", a social
experiment to which the subjects did not consent. The issue of cultural
genocide is considered by Patricia Monture in A Vicious Circle: Child Welfare
and the First Nations, 1989 Canadian Journal of Women & the Law 3, 1-17. The
present treatment of Native children is one of special concern recognized in
legislation such as Part X of the CFSA.

[29] See for example sections 57, 377, 378 and 397 of the Criminal Code, R.S.
1985, c. C-46.

[30] The Registrar of Adoption Information's discretion in the statute makes no
reference to the guidelines.

[31] Professor Carp paid particular attention following the passage of Measure
58 in Oregon in 2002, noting that none of the "social turmoil" or "outing of
birth parents" predicted by opponents to the measure came to pass and that
contact preferences, which were not backed by offence provisions, had uniformly
been respected.

[32] Dr. Smith supported counselling of those considering abortion, inter alia,
to ensure that women facing unplanned pregnancies were aware of the guilt
associated with the ending of a life or potential life. He noted that the
American Council for Adoption (ACFA), for which he has spoken and written
papers, is diametrically opposed by the American Adoption Congress, which
favours open records. He also noted that the mandatory counselling of birth
mothers seeking abortions, supported by ACFA, is anathema to groups in the
women's rights movement in the United States such as NARAL Pro-Choice. In Dr.
Smith's counselling of literally hundreds of birth mothers over the 30 years
following the legalization of abortion by the Supreme Court of the United States
in the decision of Roe v. Wade, 410 US 113 (1973), the subject of abortion
simply never came up. Smith transcript, pages 15 to 17 and 36 to 41 Transcript
brief, tab D.


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