Bill 39 - An Act Respecting the Opening of Sealed Adoption Records

BILL 39

An Act Respecting the Opening of Sealed Adoption Records

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Child and Youth Advocate Act

1 Paragraph 22(4)(d) of the Child and Youth Advocate Act, chapter C-2.7 of the Acts of New Brunswick, 2007, is amended by striking out “section 91” and substituting “Part V.I”.

Family Services Act

2( 1) Section 11 of the Family Services Act, chapter F-2.2 of the Acts of New Brunswick, 1980, is amended by adding before subsection (1) the following:

11( 0.1) This section does not apply to Part V.I.

2( 2) Section 67 of Act is amended by adding after subsection (2) the following:

67( 2.1) A person with access to records or documents relating to adoptions, including the identities of references and their comments provided under this section, who discloses information on any prospective adopting parent otherwise than in compliance with this Part commits an offence.

2( 3) Section 90.1 of the Act is repealed.

2( 4) Section 91 of the Act is repealed.

2( 5) Section 92 of the Act is repealed.

2( 6) Section 94 of the Act is repealed.

2( 7) The Act is amended by adding before section 95 the following:

PART V.I

CONFIDENTIALITY, DISCLOSURE AND THE POST-ADOPTION REGISTER

Definitions

94.01 The following definitions apply in this Part.

“adopted person” includes a person who belongs to the class of persons referred to in paragraph 23(b) of the Vital Statistics Act. (personne adoptée)

“adoption” includes the placing for adoption of persons who belong to the class of persons referred to in paragraph 23(b) of the Vital Statistics Act. (adoption)

“contact preference” means a document that sets out the preferences of the person who provides the contact preference regarding contact with another person. (acceptation limitée de prise de contact)

“disclosure veto” means a document that prohibits the disclosure of identifying information about the person who provides the disclosure veto. (refus de divulgation)

“identifying information” means information that reveals the identity of a person. (renseignement identificatoire)

“Minister” means the Minister of Families and Children. (ministre)

“non-identifying information” means information that does not reveal the identity of a person such as year of birth, ethnic origin, physical description, education level, religion and health history. (renseignement non identificatoire)

“undertaking” means a document that is signed by a person and that states that he or she agrees to abide by the terms of a contact preference. (engagement)

Confidential records and documents

94.02( 1) Subject to this Part, all records and documents relating to the adoption of any person on file with the court and with the Registrar General of Vital Statistics are confidential.

94.02( 2) All records and documents relating to the adoption of any person on file with the court shall be made available to the Minister who shall have the right to make copies of the records and documents as he or she considers fit.

94.02( 3) All records and documents relating to the adoption of any person and held by a religious, medical or social service agency or facility shall be provided to the Minister on his or her request.

94.02( 4) Subject to this Part, all records and documents in the possession of the Minister relating to the adoption of any person are confidential.

94.02( 5) The Minister may provide a copy of an openness agreement relating to the adoption of a person to any party to the agreement and to the adopted person.

Post-adoption register

94.03 The Minister shall establish a post-adoption register for the purposes of this Part and shall appoint an appropriate employee as Registrar to administer the register.

Disclosure of non-identifying information

94.04( 1) A person may apply to the Minister for the disclosure of non-identifying information relating to an adoption.

94.04( 2) The Minister may disclose non-identifying information to the following persons:

(a) an adopted person who is at least 19 years of age;

(b) an adopted person who is under 19 years of age with the consent of an adopting parent;

(d) a birth parent; or

(e) any other person who has, in the opinion of the Minister, an interest in the matter and a reason acceptable to the Minister.

94.04( 3) Despite paragraph (2)(b), the Minister may disclose non-identifying information to an adopted person who is under 19 years of age without the consent of an adopting parent if the Minister is satisfied that special circumstances justify the disclosure of the information.

Disclosure of identifying information

94.05( 1) A person may apply to the Minister for the disclosure of identifying information relating to an adoption.

94.05( 2) The Minister may disclose identifying information to the following persons:

(a) an adopted person who is at least 19 years of age;

(b) an adopted person who is under 19 years of age with the consent of an adopting parent;

(d) a birth parent; or

(e) any other person who has, in the opinion of the Minister, an interest in the matter and a reason acceptable to the Minister.

94.05( 3) Despite paragraph (2)(b), the Minister may disclose identifying information to an adopted person who is under 19 years of age without the consent of an adopting parent if the Minister is satisfied that special circumstances justify the disclosure of the information.

94.05( 4) Despite any other provision in this Part, the Minister may disclose identifying information to the persons referred to in subsections (2) and (3) in the following circumstances:

(a) it is necessary to avoid a situation in which a person, having obtained identifying information from another source, contacts a birth parent or an adopted person without the prior preparation of the person contacted;

(b) it is necessary to settle an estate;

(d) the Minister is satisfied that special circumstances justify the disclosure of the information; or

(e) the Minister is satisfied that all persons who will be directly affected by the disclosure of information have consented to its disclosure and that there is no compelling reason in the public interest to refuse the application.

94.05( 5) Subject to paragraphs (4)(a) to (d) and despite paragraph (4)(e), subsections 94.07(3) and (4) and subsections 94.08(4) and (5), the Minister shall not disclose identifying information about an adopted person or a birth parent if the Minister or the birth parent placed more than one child of the birth parent for adoption with the same adopting parents and one or more of the children are under 19 years of age.

94.05( 6) If the Minister discloses identifying information to an applicant under this section, the Minister shall also provide a copy of a contact preference, if any.

94.05( 7) If a copy of a contact preference is provided under subsection (6), the applicant shall sign an undertaking under subsection 94.2(6).

Past adoptions – disclosure veto

94.06( 1) In the case of an adoption effected before April 1, 2018, the following persons may provide a disclosure veto to the Minister on a form provided by the Minister:

(a) an adopted person who is at least 18 years of age; and

(b) a birth parent.

94.06( 2) A disclosure veto that a person may provide under subsection (1) may include the following information:

(a) an explanation for the person’s preferences regarding disclosure;

(b) a summary of any available information about the medical and social history of the person and his or her family; and

94.06( 3) On receiving a disclosure veto that meets the requirements of this Part, the Minister shall file the disclosure veto on the post-adoption register.

94.06( 4) A disclosure veto shall not be effective and shall not be filed by the Minister on the post-adoption register if it would conflict with the terms of an openness agreement.

94.06( 5) A person who provides a disclosure veto may modify or cancel the disclosure veto by notifying the Minister on a form provided by the Minister.

94.06( 6) A person who provides a disclosure veto or who modifies or cancels a disclosure veto shall provide proof of his or her identity satisfactory to the Minister.

94.06( 7) A disclosure veto shall be cancelled by the Minister one year after the death of the person who provided the disclosure veto if the Minister is provided with proof satisfactory to the Minister of the death of the person.

Past adoptions – disclosure of identifying information

94.07( 1) In the case of an adoption effected before April 1, 2018, an adopted person who is at least 19 years of age or a birth parent may apply to the Minister for the disclosure of identifying information about the other person.

94.07( 2) A person who applies to the Minister for the disclosure of identifying information shall provide proof of his or her identity satisfactory to the Minister.

94.07( 3) The Minister may disclose identifying information about an adopted person if the adopted person

(a) is at least 19 years of age, and

(b) the application under subsection (1) is made on or after April 1, 2018, and the adopted person has not provided a disclosure veto to the Minister.

94.07( 4) The Minister may disclose identifying information about a birth parent if the application under subsection (1) is made on or after April 1, 2018, and the birth parent has not provided a disclosure veto to the Minister.

94.07( 5) If the Minister discloses identifying information to an applicant under this section, the Minister shall also provide a copy of a contact preference, if any.

94.07( 6) If a copy of a contact preference is provided under subsection (5), the applicant shall sign an undertaking under subsection 94.2(6).

Future adoptions – disclosure of identifying information

94.08( 1) In the case of an adoption effected on or after April 1, 2018, if the adopted person is not a child placed by the Minister under section 70 or an adult, the birth parents shall complete a form provided by the Minister acknowledging that when the adopted person is 19 years of age, identifying information about the adopted person and the birth parents may be disclosed in accordance with this section.

94.08( 2) In the case of an adoption effected on or after April 1, 2018, an adopted person who is at least 19 years of age or a birth parent may apply to the Minister for the disclosure of identifying information about the other person.

94.08( 3) A person who applies to the Minister for the disclosure of identifying information shall provide proof of his or her identity satisfactory to the Minister.

94.08( 4) The Minister shall disclose identifying information about an adopted person or a birth parent unless

(a) there is a court order that prohibits contact between the adopted person and the birth parent, or

(b) there is a compelling reason in the public interest to refuse the application, as determined by the Minister.

94.08( 5) The Minister shall only disclose identifying information about an adopted person if the adopted person is at least 19 years of age.

94.08( 6) If the Minister discloses identifying information to an applicant under this section, the Minister shall also provide a copy of a contact preference, if any.

94.08( 7) If a copy of a contact preference is provided under subsection (6), the applicant shall sign an undertaking under subsection 94.2(6).

Contact by the Minister

94.09 If an application is made to the Minister under this Part, the Minister may make contact with any person on a confidential basis to

(a) attempt to obtain information relating to the application, or

(b) arrange contact between the applicant and the person contacted.

Documents with the Registrar General

94.1( 1) An adopted person or a birth parent may apply to the Minister for a statement of original registration of birth referred to in the Vital Statistics Act and a copy of an order, judgment or decree kept on the special register under that Act.

94.1( 2) The Minister may require that the Registrar General of Vital Statistics issue a statement of original registration of birth and a copy of an order, judgment or decree to an applicant under subsection (1), if the applicant meets the requirements of this Part.

Contact preference

94.2( 1) The following persons may provide a contact preference to the Minister on a form provided by the Minister:

(a) an adopted person who is at least 18 years of age; and

(b) a birth parent.

94.2( 2) A contact preference that a person may provide under subsection (1) may include the following information:

(a) a description of the person’s preferences regarding contact;

(b) an explanation for the person’s preferences regarding contact;

(d) any other relevant non-identifying information.

94.2( 3) On receiving a contact preference that meets the requirements of this Part, the Minister shall file the contact preference on the post-adoption register.

94.2( 4) A person who provides a contact preference may modify or cancel the contact preference by notifying the Minister on a form provided by the Minister.

94.2( 5) A person who provides a contact preference or who modifies or cancels a contact preference shall provide proof of his or her identity satisfactory to the Minister.

94.2( 6) Any person who is provided with a contact preference under this Part shall sign an undertaking stating that he or she shall not

(a) knowingly contravene any term set out in the contact preference,

(b) procure another person to contravene any term set out in the contact preference,

(d) procure another person to intimidate or harass the person who provided the contact preference, or

(e) publish any identifying information about the person who provided the contact preference.

Death of an adopted person or a birth parent

94.3( 1) After the death of an adopted person or a birth parent, a child of the adopted person or birth parent may apply to the Minister for the disclosure of identifying information relating to an adoption.

94.3( 2) The Minister may disclose identifying information under this Part to the following persons:

(a) if an adopted person is deceased, a child of the adopted person who is at least 19 years of age, and

(b) if a birth parent is deceased, a child of the birth parent who is at least 19 years of age.

Sharing of information

94.4( 1) The Minister may disclose non-identifying and identifying information relating to an adoption to the Registrar General of Vital Statistics for the purposes of subsection 24(5) of the Vital Statistics Act.

94.4( 2) The Minister may enter into an agreement with an adoption authority in another jurisdiction respecting the sharing of information.

94.4( 3) Under an agreement entered into under subsection (2), the Minister may disclose non-identifying and identifying information if it is necessary

(a) to enable the Minister to determine if a disclosure veto or contact preference has been filed in that jurisdiction, or

(b) to enable the adoption authority to determine if a disclosure veto or contact preference has been filed under this Part.

94.4( 4) An agreement under subsection (2) shall provide reasonable safeguards

(a) to protect the confidentiality and security of any confidential information that the Minister discloses, and

(b) to ensure that confidential information will be used only for the purposes for which it was disclosed.

94.4( 5) If an adopted person who is aboriginal or his or her adopting parent makes a request to the Minister, the Minister may disclose non-identifying and identifying information about the adopted person or his or her birth parents and any other information that the Minister considers relevant to the Registrar under the Indian Act (Canada) or to the appropriate federal or provincial official for the purpose of determining entitlement to registration as an Indian under that Act or to benefits as an aboriginal person.

94.4( 6) The Minister may disclose information in accordance with this section without consent and despite a disclosure veto having been provided under this Part.

Persons with an interest

94.5( 1) A person who is at least 19 years of age and who has, in the opinion of the Minister, an interest in an adoption but who is not the adopted person or a birth parent may register his or her name and contact information on the post-adoption register and, by doing so, consents to the disclosure of that identifying information to the adopted person and the birth parents.

94.5( 2) The Minister may disclose identifying information about a person who registers on the post-adoption register under subsection (1) to the adopted person who is at least 19 years of age and the birth parents.

Offences

94.6( 1) A person with access to records or documents relating to adoptions, who discloses information on any adoption otherwise than in compliance with this Part commits an offence.

94.6( 2) A person who is provided with a contact preference and who signs an undertaking commits an offence if the person

(a) knowingly contravenes any term set out in the contact preference,

(b) procures another person to contravene any term set out in the contact preference,

(d) procures another person to intimidate or harass the person who provided the contact preference, or

(e) publishes identifying information about the person who provided the contact preference.

2( 8) Section 143 of the Act is amended

(a) by repealing paragraph (jj);

(b) by repealing paragraph (kk);

(c) in paragraph (ll) by striking out “for the purpose of subsection 92(5)” and substituting “for the purposes of subsections 94.04(3) and 94.05(3) and paragraph 94.05(4)(d)”;

(d) by repealing paragraph (mm).

2( 9) Schedule A of the Act is amended

(a) by adding after subsection 58(6) the following:

67(2.1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E

(b) by striking out

94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E;

94.6(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E

94.6(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E

Regulation under the Family Services Act

3( 1) Section 2 of New Brunswick Regulation 81-132 under the Family Services Act is amended

(a) by repealing subsection (4);

(b) in subsection (6) in the portion preceding paragraph (a) by striking out “for the purpose of subsection 92(5)” and substituting “for the purposes of subsections 94.04(3) and 94.05(3) and paragraph 94.05(4)(d)”.

3( 2) The heading “POST-ADOPTION DISCLOSURE REGISTER” preceding section 15 of the Regulation is repealed.

3( 3) Section 15 of the Regulation is repealed.

3( 4) Section 16 of the Regulation is repealed.

3( 5) Section 17 of the Regulation is repealed.

3( 6) Section 18 of the Regulation is repealed.

Ombudsman Act

4 Paragraph 19.2(3)(d) of the Ombudsman Act, chapter O-5 of the Revised Statutes, 1973, is amended by striking out “section 91” and substituting “Part V.I”.

Vital Statistics Act

5( 1) Section 24 of the Vital Statistics Act, chapter V-3 of the Acts of New Brunswick, 1979, is amended

(a) by adding after subsection (1) the following:

24( 1.1) Despite section 7 of the Right to Information and Protection of Privacy Act and subject to this Act, the Registrar General is not required to grant access to or disclose any entry or information or documents contained in the special register to any person, including the person to whom a registration, order, judgment or decree applies.

(b) by adding after subsection (3) the following:

24( 4) A statement of original registration of birth issued by the Registrar General under this section in respect of an original registration of birth kept in the special register under subsection (1) shall contain at least the following particulars of the registration:

(a) the name of the person;

(b) the date of birth of the person;

(d) the date of registration;

(e) the registration number;

(f) the names of the birth parents of the person; and

(g) any other information prescribed by regulation.

24( 5) The Minister of Families and Children may require that the Registrar General issue a statement of original registration of birth and a copy of an order, judgment or decree kept in the special register under subsection (1) to a person named by the Minister of Families and Children.

24( 6) The Registrar General may disclose information relating to an adoption to the Minister of Families and Children for the purposes of Part V.I of the Family Services Act.

5( 2) Subsection 38.1(1) of the Act is amended by striking out “of the form” and substituting “of the form but does not include an original birth registration form kept in the special register under subsection 24(1)”.

5( 3) Section 52 of the Act is amended by adding after paragraph (j.1) the following:

(j.11) prescribing information to be contained in a statement of original registration of birth under subsection 24(4);