Vous êtes sur la page 1sur 32



2006 CanLII 19946 (ON SC)

) ) ) INFANT NUMBER 10968, also known as D. ) MARIE MARCHAND ) ) Applicant ) ) ) - and ) ) HER MAJESTY THE QUEEN IN RIGHT ) OF ONTARIO, CATHOLIC CHILDRENS ) AID SOCIETY OF TORONTO ) Respondents ) ) ) ) B E T W E E N:

Marshall A. Swadron and Kelley Bryan for the Applicant

Sara Blake and Zachary Green For the Respondents Helen P. Murphy for the Respondents HEARD: February 1 and 2, 2006

FRANK J.: [1] When Marie Marchand was 5 months old she was placed with adoptive parents. When she was one year old, in May of 1957, her adoption was finalised with the issuance of an adoption order. Ms. Marchand, the applicant, has not met either of her birth parents. When she began her search for them, her mother had long before died. Her fathers identity is uncertain. The information gathered at the time she was made a Crown ward contains the name of a man identified by her mother as her father. This information is in the control of the government. [2] The applicants only means of obtaining this name is through the disclosure provisions of the Child and Family Services Act, R.S.O. 1990, c. C 11 [CFSA]. She has been denied the name by the Registrar under the Act. The other information in the custody and control of the government regarding her birth family has been provided to her.

- Page 2 -

[4] She seeks a finding of invalidity with respect to sections 161 to 174 of the CFSA and s. 28 of the VSA. These sections are set out in the addendum to this decision. The Attorney General takes the position that the applicant does not have standing to bring a question of the constitutional validity of s. 161 and ss. 169 to 174 of the CFSA nor of s. 28 of the VSA. THE ISSUES [5] The following issues are to be determined: 1. 2. Does the applicant have standing with respect to those sections disputed by the Attorney General? Do the adoption disclosure provisions with respect to which the applicant has standing infringe her right to life, liberty and security of person under s. 7 of the Charter? If not, do those provisions infringe the applicants equality rights under s. 15(1)? If so, is the infringement demonstrably justified under s. 1? If not, what remedies are available to the applicant?

3. 4. 5.

THE LEGISLATIVE BACKGROUND [6] In 1921, Ontario passed the first Adoption Act, S.O. 1921, c. 55. Section 10 of the Act gave 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. 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. [7] Since 1927, adoption records have been confidential in Ontario. Section 9(3) of the Adoption Act, 1927, c. 53, provided that papers used for an adoption application shall be sealed up and shall not be open for inspection save upon the direction of a Judge or the Provincial Office.

2006 CanLII 19946 (ON SC)

[3] The applicant is highly critical of the adoption process, the governing legislation and its administration. She decries what she describes as the lack of honesty in adoption and the legislated secrecy that restricts adopted persons access to information about their birth parents. In this application, she asserts that the provisions of the CFSA and the Vital Statistics Act, R.S.O. 1990, c. V.4 [VSA], which deny her access to information, violate her Constitutional rights. She relies on s. 7 and s. 15(1) of the Charter.

- Page 3 -

[8] In 1954, the Adoption Act was repealed and adoption became regulated under the Child Welfare Act, S.O. 1954, c. 8, the precursor to todays CFSA.
2006 CanLII 19946 (ON SC)

[9] The Child Welfare Act, S.O. 1978, c. 85, ss. 80-81, was amended in 1978 to establish the voluntary disclosure registry. This was an attempt to balance the privacy rights of adoptive parents and birth parents against the interests of adopted adults in obtaining information about their relatives. If both the adult adoptee and his or her birth parent registered, and both parties and the adoptive parents consented, information could be disclosed and a reunion could take place. The registry accepted voluntary registration but did not actively search for unregistered individuals. [10] In 1985, the Minister of Community and Social Services appointed a special commissioner, Dr. Ralph Garber, to make recommendations regarding the disclosure of adoption information. The provisions of the Child Welfare Act were amended to incorporate most of the recommendations in the Garber Report. However, Dr. Garbers recommendation that adult adoptees be permitted access to identifying information without the consent of the person identified was not accepted by the Legislature. The reason cited by the Minister for this decision was the protection of birth parents confidentiality and privacy. [11] The amendments to the disclosure provisions of the Child Welfare Act established the Adoption Disclosure Registrar [ADR] and enacted the scheme that is now set out in ss. 162 to 174 of the CFSA. The ADR is an active search system whereby adopted persons and certain categories of birth relatives can be located even in the absence of registration in the passive registry. The identifying information of located persons can be exchanged, but only if both persons consent. This is subject to the Registrars discretion pursuant to s. 168, which allows the disclosure of identifying information where required for the health, safety or welfare of any individual. The policy guidelines, pursuant to which the Registrars discretion is exercised, state that this section is intended primarily for true emergency situations, and not to circumvent the normal disclosure process and consent requirement where time is not of the essence. (See: Policy and Guidelines for the Disclosure of Adoption Information, Ministry of Community and Social Services, February 1988.) [12] The guidelines provide that the Registrar is to consider disclosure where that disclosure could: 1. alleviate a life threatening situation such as the need by a birth relative of an organ transplant from a biologically related person; 2. aid in the diagnosis or treatment of a serious genetic disorder; 3. aid in the treatment of severe psychological or emotional dysfunction related to the adoption; 4. aid the transition of adolescents to their adoptive families; and, 5. where an individuals personal safety is being endangered.

- Page 4 -

[13] Disclosure may be refused where a person is otherwise entitled to the identifying information pursuant to s. 168, if disclosure might result in serious physical or emotional harm to someone. [14] The Registrars decision under this section may be reviewed by the Child and Family Services Review Board (CFSA ss. 171-172). [15] The VSA governs the registration of births and adoption orders. Registrations are maintained and disclosed by the Registrar General. The fact of an adoption is noted by the Registrar General on the birth certificate along with any change of name that has occurred as a result of the adoption. On application, pursuant to s. 28, the Registrar may substitute an original birth registration with one in accordance with the facts contained in the adoption order, as if the adopted person had been born to the adopting parents. When this substitution is made, the original registration is sealed. A birth certificate issued on application will be in accordance with the new registration. [16] On November 3, 2005, the Adoption Information Disclosure Act, 2005, S.O. 2005 c. 25 [AIDA], received royal assent. The AIDA amends the VSA and the CFSA by permitting adult adoptees to obtain uncertified copies of their original birth registrations and registered adoption orders, and by permitting birth parents to obtain information contained in the adoption orders and any original and substituted birth registrations of their adult birth children, subject to certain conditions. An adopted adult or birth parent may file a contact preference form specifying his or her preferences concerning the manner in which he or she may be contacted. An adopted adult or birth parent may also register a no-contact notice, requiring the party seeking disclosure to agree in writing not to contact or attempt to contact the person who registered the notice, before disclosure of identifying information can occur. It is an offence for an adopted person or birth parent who has received a no contact notice to knowingly contact or attempt to contact the person who registered the notice. [17] The AIDA also allows birth parents and adopted adults to apply to the Child and Family Services Review Board for an order prohibiting disclosure where, because of exceptional circumstances, the order is appropriate in order to prevent sexual harm or significant physical or emotional harm. [18] The provisions of the AIDA come into force on days to be named by proclamation. The government has stated its intention to proclaim the AIDA in stages; however, the entire Act is scheduled to come into force by 2007. To date, the AIDA has already repealed the impugned provisions requiring that persons seeking disclosure receive counselling (CFSA ss. 163 (2)(b)(c), s. 166(6), s. 167(5) and (9)) and has repealed and replaced the impugned provisions with respect to searches (CFSA ss. 169(1)-(3)). When fully proclaimed, the AIDA will repeal every section and subsection of the CFSA challenged in this proceeding, with the exception of ss. 161, 162(1) and (3)(a) and (c)-(d) and 165(5). The AIDA will eliminate the ADR and the position of the Registrar of Adoption Information, and will provide for the release of adoption information in prescribed circumstances.
2006 CanLII 19946 (ON SC)

- Page 5 -

STANDING [19] The Attorney Generals position is that the applicant does not have standing to question the constitutional validity of the adoption re-registration provisions of the VSA ss. 28(2) (5), or of the following provisions of the CFSA : s. 161, requiring notice of an adoption to be given to a person whose consent to adoption was given or dispensed with; s. 169, providing for a search for specified birth relatives to be undertaken on behalf of adopted persons over the age of 18; s. 170, dealing with adopted persons outside of Ontario; and, ss. 171 174 dealing with the refusal to provide information to an adopted person which would but for these provisions, be available to that person. The basis for the Attorney Generals position is that the applicant was not directly affected by any of these provisions and, in the case of s. 169, the legislation has been repealed. [20] At the hearing of the motion the applicant withdrew the questioning of ss. 161 and 170, leaving her standing with regards to ss. 171-174 of the CFSA and s. 28 of the VSA to be determined. [21] The test for public interest standing was established by the Supreme Court of Canada in Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575. In order to gain standing a party must show that: 1. 2. 3. there is a serious issue raised as to the validity of the legislation in question; that the applicant is affected by the legislation directly or that he or she has a direct interest as a citizen in the validity of the legislation; and there is no other reasonable and effective manner in which the issue may be brought before the court.

[22] The decision whether to grant public interest status is a discretionary one. The applicant bears the onus of demonstrating that the requirements for granting public interest standing have been met. (Hy and Zel's Inc. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675 at 688.) (a) The VSA, ss. 28(2)-(5) [23] There is no dispute that the applicant has met the burden of establishing the existence of a serious issue as to the validity of the legislation. It is the Attorney Generals position that she has failed to meet the onus with respect to the balance of the Borowski test for standing as she was not directly affected by the legislation and there are other reasonable and effective ways for the issue to come before the court. [24] The applicant has not been directly affected by the re-registration provisions of the VSA; her birth was not re-registered after her adoption and, as a result, her birth registration was not sealed. She has been provided with a certified copy of her birth registration. The applicants belief that her birth registration was sealed, and her only recent acquisition of her birth

2006 CanLII 19946 (ON SC)

- Page 6 -

certificate, is insufficient to establish that s. 28 of the VSA directly affects her. Nor is her disdain for the legislation a sufficient direct interest to meet the test for the granting of standing.
2006 CanLII 19946 (ON SC)

[25] A declaration of the invalidity of ss. 28(2)-(5) would have no effect on this applicant. It could, however, have a substantial effect on those whose birth registrations were re-registered. They would have to deal with the uncertainty that would result from their having two birth certificates bearing different names. There is no evidence before the court from these adopted persons. The determination of Charter issues must be based on a foundation of evidence from those directly affected by the impugned legislation. Without that foundation, the effect of the legislation cannot be properly assessed. The issue should not be decided without hearing from those who are directly affected by it. (See: Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236.) [26] Approximately 60% of adoptions result in birth re-registration. Clearly, there are a significant number of people who are directly affected by s. 28. They are in a better position to challenge it as they can provide an accurate evidentiary basis for the challenge. As any of these individuals to whom s. 28 has direct application can challenge that legislation, there is no risk that it is immunized from constitutional challenge. [27] The applicant bears the burden of establishing standing. She did not address the issue of standing in her factum, nor did she direct me to any case law on the issue in the oral submissions made on her behalf at the hearing. She submits that as she believed her birth registration to be sealed, the effect on her was the same as if it there had been a re-registration. That submission is insufficient to satisfy the onus. [28] I find that the applicant does not have standing to challenge ss. 28(2)-(5) of the VSA.

(b) CFSA, ss. 171-174 [29] Contrary to her position, the applicant has never been denied information pursuant to the CFSA ss. 171-172. These provisions give the Registrar discretion to refuse to disclose information to which a person would otherwise be entitled under the CFSA ss. 166, 167 and 170, if, in the Registrars opinion, the disclosure might result in serious physical or emotional harm to any person. [30] The applicant has not been refused information to which she would otherwise be entitled under ss. 166, 167, or 170. She has been refused identifying information under s. 167. The information is the name of the man indicated by the applicants birth mother to be the applicants father. The information was refused, not because of s. 171, but because there was no match on the Adoption Disclosure Register and because the man denied his consent to disclosure. [31] There is no evidence before me of anyone having been denied information under s. 171. It is not possible to assess the operation of this section in the context of a factual situation and hence its constitutionality cannot be properly assessed.

- Page 7 -

[33] In the absence of s. 172 having been engaged, s. 173 cannot apply to the applicant. There is no evidence of the applicant having been required to pay any fee or expense as authorised by s. 174. The court cannot assess the constitutionality of these sections without evidence of their impact on adopted persons. [34] In order for this applicant to have standing, she must establish a stronger nexus between herself and the impugned legislation than her contempt for it. The applicant has not satisfied me that this is an appropriate case in which to exercise my discretion in favour of granting status with respect to ss. 171-174 of the CFSA. [35] As s. 169 is no longer in effect, it is not subject to review.

(c) Conclusion [36] I find that the applicant has standing to challenge only the conceded sections of the CFSA, that is ss. 162-168. FACTS (a) Applicants Background [37] The applicant was born on October 5, 1955, in Toronto and named Nida Marie Fortune by her mother, Alice Victoria Fortune. The applicants birth was registered on October 14, 1955, in accordance with the VSA. The original birth registration names the applicants mother but records no information in the section entitled Particulars of Husband. Approximately three months after the applicants birth, Ms. Fortune consented to the applicant becoming a Crown ward, thereby making her eligible for adoption. To Child Welfare authorities and in the course of the Crown wardship hearing, Ms. Fortune identified a man as being the applicants birth father and issued a declaration of paternity. [38] On May 30, 1957, the applicant was adopted by Joseph Amedee Marchand and Mary Doreen Marchand. Her adoptive parents re-named her Donna Marie Marchand. A notation of the adoption and change of name was made on the applicants original birth registration. The applicants adoptive parents applied for a short-form birth certificate, which was issued in the applicants changed name. The applicants adoptive parents did not apply for a substitute registration of her birth. Therefore, her original birth registration was never sealed. [39] The applicants adoptive parents did not acknowledge that she was adopted though her adoption was what she describes as an open secret in her adoptive family and the community.

2006 CanLII 19946 (ON SC)

[32] Further, s. 172 provides a mechanism for the review of the Registrars decision under s. 171. It is not the role of this court to supersede a review process that has not been engaged by the applicant. Nor can the review provision be considered in the absence of the factual underpinnings for a consideration of s. 171.

- Page 8 -

She did not have actual confirmation of the fact that she had been adopted until she found her adoption order in her adoptive parents home. This was in 1983, a year after her adoptive father died and when she was 28 years of age. [40] The applicant describes her childhood as being marred by severe verbal, sexual and physical abuse to which she was subjected by members of her adoptive family and others. As she grew, she had to deal with the effects of this abuse and deteriorating health. In 1975, she was diagnosed with Crohns disease and a rectal fistula for which surgery was required and that resulted in lasting incontinence. She continued to grind her teeth, something which she had begun doing as a child, with resultant dental problems. [41] She has been under the care of therapists since 1975 for what she describes as depression, stress and loneliness. [42] In spite of all of this, the applicant achieved broad success in her life. She is a recording artist, songwriter and instrumentalist. She obtained a double honours degree in social-cultural anthropology and womens studies, followed by a law degree from the University of Toronto. She articled with the Constitutional Law and Policy Branch of the Ontario Ministry of the Attorney General and was called to the Bar in 1996. She has a strong record of community activism. She ran for election to the Ontario Legislature in 1997. (b) Applicants Attempts to Obtain Birth Information [43] It was in 1984 that the applicant took the first formal steps towards obtaining information regarding her birth parents. In August of that year, she registered with the Adoption Disclosure Unit [ADU]. The applicant knew her birth mothers name as she identified her surname at birth as Fortune. There was no matching registration by a birth relative in the ADR. The applicants registration was maintained in the ADR in the event that a matching registration occurred in the future. At that time, the ADU did not conduct active searches for birth relatives. [44] In July 1987, the ADU sent a letter to everyone registered with it, advising of legislative changes allowing for active searches and enclosing a search request form. The applicants evidence that she had not received the form in 1987, though she admitted to receiving the letter, was modified on cross-examination to her not knowing whether or not she had received the form. The applicants assertion throughout was that she was consumed by the need to know her birth parents. However, the applicants justification for not having completed the form in 1987 or for many years after was that she had not received a search request form. [45] It is the applicants evidence that not having access to information regarding her birth parents was devastating to her life and created her need for therapy. Nonetheless, there is no evidence of her having taken any steps available through the CFSA to locate her birth parents until 1998 when she completed the search request form. This is not consistent with her being as consumed with the need to know about her birth parents as the applicant claims to have been or with the absence of this information having the alleged impact on her.
2006 CanLII 19946 (ON SC)

- Page 9 -

[47] The social histories provide information such as physical descriptions, medical information, ethnicity, religion and non-identifying family background descriptions. From the social history given to the applicant, she learned of her native descent. She also learned that her birth mother and the man named as her birth father met at a roller-skating rink and that her mother rented a room for eight months in his parents home. The applicant describes the fact that the information was not more complete as a source of pain and frustration for her. However, neither the extent of the information nor the resulting pain are related to the challenged legislation. [48] In 1998, the applicant contacted the ADU again and completed a new search request form. She filled it in with facts already known to her including that her birth name was Nida Marie Fortune and that she was born in St. Michaels Hospital. [49] In response to the applicants search request, the ADU provided her with information regarding her birth mothers employer at the time of the applicants birth, the name of her birth mother at the time of her death in 1973, the date of her birth mothers death, the cause of the death as shown on her death certificate and the location of the cemetery where her mother was buried. [50] Because her birth mother was dead, the Registrar exercised her discretion pursuant to s. 167(10), and directed the CCAS to release to the applicant identifying information about her birth mother. The CCAS produced a second set of social histories about her birth mother and sent them to the applicant. It included the following: 1. a chronology of her birth mothers life circumstances from September 22, 1942, to February 27, 1947, leading up to her birth mother becoming a permanent ward of the CCAS; 2. information on the applicants maternal grandparents; and 3. a social history of her birth mother prepared from records compiled in 1955-1956. [51] In 1994, the ADU began searches for individuals who did not meet the general criteria for acknowledged birth fathers, as long as there was sufficient information on which to base a search. The ADU undertook a search for the man identified as her birth father. The applicant was informed of the results of the search in June 1999. The man denied paternity, did not acknowledge knowing her birth mother and did not consent to the release of his identifying information. The information was not released to the applicant.

2006 CanLII 19946 (ON SC)

[46] The applicant contacted the Catholic Childrens Aid Society [CCAS] in 1989 and requested the non-identifying social history of her birth mother and herself. These social histories are documents compiled from information in Childrens Aid Society files. The information provided to the societies and contained in their files was not verified by them. This is relevant to the reliability of the information as to the applicants birth father obtained from her birth mother. That information was not confirmed.

- Page 10 -

[53] In 2002, the applicants counsel wrote to the Registrar seeking disclosure of the identity of the man named as the applicants birth father. The Registrar replied on July 19, 2002, indicating that she had fully examined the issue of releasing identifying information about the individual named as the birth father. The letter reiterated that the individual in question denied a personal relationship with the applicants birth mother, denied he was the birth father and did not consent to the release of personal information. In addition, the Registrar stated that medical information from a person who denies the existence of a biological relationship would serve no useful purpose and could in fact be damaging to the health of the applicant. [54] Around the same time that the applicant was informed of the results of the ADUs search for her birth father, she was told that the ADU had located her maternal uncle. His consent to the release of his contact information resulted in a reunion between him and the applicant. He confirmed the applicants aboriginal heritage. [55] The applicant asserts that she has been robbed of her opportunity to register under the Indian Act, R.S. 1985 c. 1-5. However, there is no evidence that she has ever sought or was denied registration. The evidence establishes that the ADU offered to approach Indian and Northern Affairs Canada on behalf of the applicant to assist her in registering. But, she refused the offer. [56] One of the applicants complaints regarding the impugned legislation is of unconscionable delay in responding to search requests. However, the above searches were completed and the resulting information provided to the applicant within eight months of her request. [57] On March 26, 2001, the applicant was provided with photocopies of all material in the court file pertaining to her adoption. This included a report to the Director of Child Welfare, dated April 5, 1957, and the joint application for adoption order, dated March 25, 1957. [58] Between 1999 and 2004, the applicant made three requests to the ADR for the release of identifying information about her unacknowledged birth father pursuant to the health, safety or welfare provision, s. 168, of the CFSA. The first request was on June 28, 1999, from one of her doctors at the time, Dr. Abraham Hirsz. He advised that his patient (the applicant) was desperate to know the identity of her father. Dr. Hirsz also recommended disclosure as information about the fathers health might help to define his patients depression disorder. On August 30, 1999, the Registrar denied the applicants request because the individual named in the file denied that he was the birth father.

2006 CanLII 19946 (ON SC)

[52] On January 2, 2001, a second outreach was made to the unacknowledged birth father. A different ADU counsellor was assigned to the outreach. The individual contacted continued to deny paternity; however, this time he did admit that he knew the applicants birth mother and that she boarded with his parents. He stated that she was already pregnant when she stayed with them and she was dating another man at the time.

- Page 11 -

[60] The Registrar declined to release the identifying information, again citing that the man denied paternity. In her response to the request, the Registrar made reference to her concerns regarding the personal safety of the man in light of the threatening statements made by the applicant; however, these concerns were not a basis for her denial. She also assured the applicant to alleviate her concerns about being stalked, that the putative father had not been given any identifying information about the applicant. [61] The third health, safety and welfare request was on December 15, 2004, for the same identifying information. The request, by Dr. D.M. Westerhoff, stated that Ms. Marchands health continued to suffer because of the absence information about her biological father. Dr. Westerhoff expressed concern about the applicants physical and mental well-being due to the stress resulting from the Registrars decision not to release the information. [62] The Registrar denied this third request, as well. In a letter to the applicant, dated January 7, 2005, the Registrar stated that she had reviewed the file and the material but was unable to disclose the information because the person identified did not acknowledge or admit paternity at the time of the adoption and was not now consenting to the release of his name. [63] In summary, the applicant received the following information and services through the ADU, in accordance with the impugned provisions of the CFSA: 1. 2. 3. 4. 5. 6. 7. an expedited search for the applicants birth mother and identifying information about her; identifying and contact information about a maternal uncle, which resulted in a reunion; photocopies of all material found in the court file pertaining to the applicants adoption; non-identifying information related to the applicant; the applicants birth mothers complete social history; a search for an unacknowledged birth father; and, two separate outreaches to the man identified as her birth father, both of which resulted in a denial of paternity and a refusal of consent for the release of identifying information.

2006 CanLII 19946 (ON SC)

[59] In May 2003, the ADU received a second health, safety and welfare request for the identity of the man identified as the applicants birth father. The request, made on the applicants behalf by another doctor, Dr. D. Conroy, was based on his opinion that it was in the applicants best interest to have the information. He also indicated that a man fitting the description of the person identified by her birth mother as her birth father was stalking the applicant.

- Page 12 -


2006 CanLII 19946 (ON SC)

[64] The applicant submits that the impugned sections of the CFSA deprive her of what she describes as the fundamental right to know where she comes from. She argues that the closing of records is profoundly damaging to adoptees as it prevents them from achieving wholeness. She argues that the issue does not involve the weighing of competing interests, since adopted persons have an absolute right to whatever information the government has regarding their identity. She submits that a scheme that deprives an adopted person of any information in the governments hands relating to or gathered in the context of that persons adoption is contrary to the principles of fundamental justice and is in breach of his or her right to liberty, security of person pursuant to s. 7 of the Charter, and of his or her equality rights pursuant to s. 15 of the Charter. [65] The applicant placed a substantial amount of evidence before the court with respect to her contacts with the staff of the ADU. It reveals that she compared them to Nazis and refused to speak to them because to do so would be like a Jew sitting down with Albert Speers. Her attack on the secrecy provisions of the adoption regime is based, in large measure, on various actions of the Registrar of Adoption Information of which she is very critical. The substance of her challenge relates to the exercise of statutory power and not the provisions of the statute. Yet, the applicant has not pursued the appeal route available to her, nor has she sought judicial review of any exercise of discretion on the part of the Registrar or questioned any exercise of discretion of the Registrar in her Notice of Application or Notice of Constitutional Question. No relief is claimed regarding the Registrar. [66] The proper forum for attacking the lawfulness or validity of the exercise of discretion by the Registrar is the Divisional Court by way of an application for judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1990 c. J. 1. (See: Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 (Ont. Sup. Ct.). Accordingly, there is no need for me to make a determination as to the appropriateness of the conduct of the Registrar or the employees of the ADU. Nonetheless, it merits noting that the credible evidence is consistent with the employees and the Registrar having dealt with the applicant throughout in a responsive and professional manner in the face of what can be characterised as considerable abuse from the applicant. Attorney Generals Position [67] The Attorney General submits that the adoption disclosure legislation represents a reasonable attempt at balancing the competing demands of access to information and protection of privacy of those involved in an adoption. The legislation permits the release of existing nonidentifying information on request. It also permits the release of identifying information with the consent of the person identified. The legislation further addresses an individual need to disclosure in special circumstances. In these ways, the legislation balances the competing rights and interests of the adopted persons, their birth parents and their adoptive parents. ANALYSIS OF THE APPLICANTS FACTUAL FOUNDATION FOR HER POSITION

- Page 13 -

(a) The Impact of the Impugned Legislation [68] The applicant maintains that the impact of the impugned provisions has been devastating on her. She says because of her awareness of the inequity of the provinces adoption legislation she is unable to practice law. She also submits she has been constructively sterilised by the provisions because they have resulted in her not feeling that she herself belongs here, a feeling which denies her the right to have a child. Further, she claims to be prevented from travelling abroad because she cannot bring herself to apply for a passport given the reopening of wounds that results from even considering doing so and the consequences of having a different name on her birth certificate than her birth registration. [69] She asserts that the impugned provisions are responsible for her not pursuing her plan to complete a Master of Laws degree and for her not becoming a judge. She attributes her current inability to pursue any of the careers for which she is qualified entirely on the walls imposed by the adoption disclosure regime. [70] While there is no question that the applicant is enormously frustrated by her inability to access the name of the person identified by her birth mother as being her birth father, this is not sufficient to establish a causative connection between the withholding of that information and her extensive mental and physical health issues and the limitations which they have imposed. The evidence does not support her assertion that her life would have taken a fundamentally different course had she been allowed to openly access her birth and adoption records. [71] The sealing of the documents used on an application for adoption and the disclosure scheme mandated by the CFSA do not create a legal impediment for the applicant, or any adopted persons, in obtaining a passport, pursuing a career or having children. The emotional impediments of which the applicant complains are highly subjective and not borne out by the evidence as being the product of this legislative scheme. [72] The evidence establishes that once the applicant took steps pursuant to the CFSA to obtain information regarding her birth family, she was provided with all existing information within a reasonable time. The sole exception is her request for her original birth registration. She did not receive her birth registration form until 2005. [73] The applicants attribution of her anguish to the legislated restrictions on the availability of information to adopted persons disregards the reality of her life. [74] The extensive sexual and physical abuse to which the applicant was subjected in her early childhood have undoubtedly figured in her mental health and her ability to function. Further, the secrecy surrounding her adoption imposed by her adoptive parents created an atmosphere which she describes as, at best, confusing and, at worst, crippling to her psychological development and sense of identity. The secrecy that informed her childhood was not a product of the impugned provisions of the CFSA and VSA, but rather the attitude and approach of her adoptive parents.

2006 CanLII 19946 (ON SC)

- Page 14 -

(b) The Emotional Needs of Adopted Persons [76] The applicant maintains that there is an overwhelming body of clinical research establishing that all adopted persons have a deeply felt need to know their origins. Also, she submits that, in the majority of cases, in order for adopted persons to have human dignity they need to know their birth parents. The evidence does not support this. [77] The applicant relies on the evidence of Ms. Evelyn Robinson and Dr. David Kirschner and the writings of those to whom they refer. [78] Ms. Robinson is an advocate of the complete abolition of adoptions. She believes that the mental health of adopted persons requires that they connect with their birth mothers. Ms. Robinson does not hold any graduate degrees and has never worked in adoption placement. She bases her writings on her personal experiences as a mother who relinquished a child for adoption, on her experience with the people who have come to her self-help group for support and on the reading she has done, consisting of popular press secondary sources. She has not conducted any quantitative studies of adoption or its outcomes. [79] Her theory is that the separation of a child from her mother through adoption is traumatic and has lifelong damaging effects on the child. It is unsupported by any empirical evidence. Dr. David Brodzinsky, Dr. Jerome Smith and Dr. Anne Brodzinsky reject this theory in their text Childrens Adjustment to Adoption: Developmental and Clinical Issues (Thousand Oaks, CA: Sage, 1998). Dr. Brodzinsky is acknowledged by the applicant to be the preeminent expert in the field of adoption. [80] Ms. Robinsons evidence lacks neutrality and objectivity. It fails to meet the required threshold of reliability. For these reasons, I do not give weight to her evidence. (Bank of Montreal v. Citak, [2001] O.J. No. 1096 (S.C.J.) at para. 5; Fraser River Pile & Dredge Ltd. v. Empire Tug Boats Ltd. (1995), 37 C.P.C. (3rd) 119 (F.C.T.D.) at para. 17.) [81] Dr. Kirschner is a psychotherapist in private practice. The applicant relies on his theory of the adopted child syndrome which he describes as being characterised by anti-social behaviour culminating, in an unspecified number of cases, in homicidal rage or serial killing. He says that the damage done by adoption is compounded by denying adopted persons knowledge of the mother and father to whom they were born and that the syndrome evidences the dangers of minimising or ignoring an adopted persons need to know his or her origins. He argues for complete openness in adoption.

2006 CanLII 19946 (ON SC)

[75] No therapist or clinician who treated the applicant gave evidence in these proceedings. The applicant states that she was in the care of 17 therapists and doctors prior to 1977 for treatment of her depression, stress and loneliness. Although she raised the issue of her adopted status with each, their interest was in her relationship with, and treatment by, her adoptive family. This is consistent with those who treated her being of the opinion that the primary source of the applicants problems was her childhood.

- Page 15 -

[83] The adopted child syndrome is not included in the standard reference of psychiatry, the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders. It has been rejected by acknowledged authorities in the field of adoption research including Dr. Brodzinsky (see: Recent Changes and Future Direction for Adoption Research in D. Brodzinsky & J. Palacios eds., Psychological Issues in Adoption: Research and Practice (Westport: Praeger, 2005) and Dr. Jerome Smith, who gave evidence on behalf of the Attorney General. [84] Dr. Smith is an adoption researcher and clinician who teaches research and statistics at the Indiana University School of Social Work. He is a licensed Clinical Social Worker and has published several books and articles in the area of adoption. He frequently gives presentations and scholarly addresses on adoption and adoption services. His rejection of Dr. Kirschners adopted child syndrome theory is based on it being a product of generalising results of nonrepresentative studies about adoptees in psychiatric care to the whole population of adoptees. [85] In Dr. Smiths opinion, Dr. Kirschner fails to pay attention to the methodological issues involved or the limitations and qualifications expressed in the ongoing research literature and ignores recent, large, representative and methodologically sophisticated studies. His inferences and generalisations from the clinical cases he has seen in private practice are contradicted by the large, randomized empirical studies that have found no significant differences between the behaviours and characteristics of matched groups of adopted children and non-adopted children. [86] Dr. Smith states that Dr. Kirschners broad categorical conclusions about the desirability of openness in adoption are not expressed in the authorities he cites and do not reflect the professional controversy over openness and its effects on adopted persons and their adoptive and birth parents. This is supported by the authors of Childrens Adjustment to Adoption (supra at Chapter 2), one of whom is Dr. Brodzinsky, who state that much of the emphasis on openness in adoption is based on theories which lack strong empirical support (p. 16). [87] The applicant attempts to rely on Dr. Smiths evidence to support what she advances as Dr. Kirschners contention that it is essential for adopted persons to know their birth parents. However, viewed in the context of his evidence as a whole, I do not take Dr. Smiths statement that an adopted child must integrate both the adoptive and birth parents into the fabric of his or her identity to mean that the child must know the identity of those birth parents. [88] Dr. Smiths evidence is that more research is necessary to determine whether birth parent contacts are helpful, traumatic or somewhere in between. (See: Jerome Smith, The Realities of Adoption (Lanham: Madison, 1997), p.43.) His opinion is that openness in adoption, by itself, will not be the best predictor of personal stability and security in an adopted persons life. He

2006 CanLII 19946 (ON SC)

[82] Dr. Kirschner does not hold any posts at a university, has no involvement in any peerreviewed journal and has not received any grants or fellowships. He is best known for his work in the 1980s on behalf of adopted children involved in the criminal process. Dr. Kirschner has conducted no empirical research, relying instead only on his own clinical experience, which primarily concerns adopted persons in psychiatric care.

- Page 16 -

[89] According to Dr. Janet Hoopes, there is no consensus that identity problems are more severe for adopted persons than for others. (See: Janet L. Hoopes, Adoption and Identity Formation in David Brodzinsky and Marshall Schechter, eds. The Psychology of Adoption (New York: Oxford University Press, 1990) p. 149.) Further, Dr. Hoopes states, consistent with the evidence of Dr. Smith, that few significant differences are found between adopted and biological families when they are compared (p. 157). She goes on to say that many of the same variables that have been identified as influencing identity formation are equally applicable to adopted and biological children. Where there is an intensification of an interest in searching for birth parents in adolescence, as is sometimes the case, this may be a function of the adolescents home circumstances and reflective of his or her innate personality traits. [90] For the above reasons, I do not find the theories of Dr. Kirschner on which the applicant relies to be reliable. I accept the evidence of Dr. Smith over that of Dr. Kirschner. (c) The Expectation of Confidentiality

[91] The three parties to adoption, the adopted child, the adoptive parents and the birth parents are referred to as the adoption triad or triangle. It is the applicants position that the only member of this triad whose needs should be considered in determining what information an adopted person is entitled to have is the adopted person. She disputes that birth parents have a legitimate claim to confidentiality as they were given no written assurance of confidentiality and whatever historical basis there may have been for confidentiality no longer exists. [92] In opposing this position, the Attorney General relies on the expert evidence of Dr. Smith and Dr. Wayne Carp. Dr. Smith states as follows: On a whole, adoption works well under a confidential arrangement and agencies should do the best job they can in giving adoptive families as much genetic information that will lead to answers to questions as who am I? and where did I get this red hair? (Jerome Smith Affidavit, para. 19.) [93] Dr. Carp echoes the view that confidentiality is a legitimate interest of all members of the adoption triad. Dr. Carp is an academic historian who has focused on the history of adoption, particularly the history of secrecy and disclosure in adoption. He is the author of a number of publications on the topic of adoption disclosure, including Family Matters: Secrecy and Disclosure in the History of Adoption (Cambridge, Mass.: Harvard University Press, 1998). In this book, he speaks of the need to compromise on the issues of secrecy and disclosure, as an extreme position in either direction being damaging. He states: what needs to be established is a

2006 CanLII 19946 (ON SC)

states that while many adopted persons have suffered great pain because the information they received was too limited, it is not known whether greater openness would provide them with answers in ways that would ameliorate and help resolve feelings of loss and bewilderment (The Realities of Adoption, p. 67).

- Page 17 -

[94] The Attorney General further relies on the evidence of Margaret OReilly, a social worker and the manager of the Adoption Services Department of the Catholic Childrens Aid Society. She assisted in a presentation to the standing committee dealing with Bill 183 prior to the passage of the Adoption Disclosure Act. With respect to openness in adoption she speaks of the need to recognise the necessity of balancing the competing interests of birth families, adoptive families and adopted persons, the needs of which may broadly diverge. [95] Based on the above, I accept that confidentiality of adoption information is a necessary consideration to be brought to the balancing of the competing interests of the adoption triad. [96] The evidence, in my opinion, establishes that while there may not be anything in writing confirming to birth parents that their privacy will not be breached, their understanding and expectation was that their confidentiality would be maintained. [97] Consistent with this are the representations made to the standing committee with respect to Bill 183 by Dr. Ann Cavoukian, the Ontario Information and Privacy Commissioner. She advocated a disclosure veto for birth parents who, like the applicants birth mother, gave their children up for adoption prior to the proposed legislation taking effect. She spoke of the birth mothers who have relied on the promise of confidentiality, and now desperately fear exposure as a result of the provisions of Bill 183. She spoke of the emotional and psychological harm that would result to these people if the promise of confidentiality were to be broken. [98] The applicant submits that even if there was a promise of confidentiality and potential harm to birth parents should their identity be disclosed without their consent, it ought not to be a consideration. The applicant submits that the adopted persons rights must prevail. In support of this position, she relies on the first section of the CFSA. It provides that the paramount purpose of that Act is to promote the best interests, protection and well being of children. [99] Although I recognise that the child is the most vulnerable member of the adoption triad, in my opinion s. 1 of the CFSA does not assist the applicant. First, she is not child under the CFSA; the Act defines child as a person under the age of 18 years. The applicant did not make any effort to obtain information regarding her birth parents until she was 28 years of age. Second, apart from s. 162, which seals adoption application records, the impugned sections of the CFSA do not apply to children. Third, there is no evidence that had birth information been available to the applicant as a child, she would have accessed it or, if she had, it would have positively impacted on her emotional and psychological development. Finally, the disclosure scheme in the CFSA does incorporate a means of responding to the best interests of the adopted person. Section 168 of the CFSA provides for the exercise of discretion with respect to the release of information where the health, welfare and safety of the adopted person requires that it be released.

2006 CanLII 19946 (ON SC)

unified, easily accessible, effective system of disclosure that operates with the voluntary consent of triad members. The solution, in his opinion, to the difficult issue of sealed adoption records requires an acceptance that both adopted children and their birth parents have legitimate rights and needs.

- Page 18 -

(d) Ontarios Legislative Response [101] In 2005, Dr. Carp wrote A Comparative History of the Open Adoption Records Law of Ontario, Canada, with the Laws of Other English-Speaking Countries. In it, he traces the history of legislated confidentiality clauses. He concludes as follows: Ontarios adoption disclosure legislation has always been in step with the open records adoption legislation of the other Englishspeaking countries of the world. [102] He describes Canadian adoption disclosure as [embodying] the basic principle that it must provide access to adoption information to members of the adoption triangle but within a framework of respecting the rights, privacy and confidentiality of all its members (p. 26). Dr. Carp acknowledges that these rights and the needs of the triangle or triad cannot always be reconciled. However, it is his finding that Canadian legislators have always made a good faith effort to do so. [103] It was this need to balance the rights of the members of the adoption triad that prompted the responsible Minister, The Honourable John Sweeney, to reject complete openness in adoption records that was proposed by Dr. Garber in his 1985 report. In his response to that report, Mr. Sweeney asserted that the adopted adults right to know had to be balanced against the birth parents historic right to confidentiality and privacy. It is this view which informed the scheme of the legislation that the applicant challenges. [104] The epigraph to Mr. Sweeneys report quotes Prof. Robert A. Wertkin from an article entitled Adoption Workers View on Sealed Records (Public Welfare, Spring 1986) as follows: A complex balance of different rights exists within every adoption. The rights of all parties in the adoption triangle must be considered and weighed a task that is not easy. Ultimately, choice must be made regarding whose rights should supersede the rights of others. This means there will be times when some members of the adoption triangle are satisfied and others dissatisfied with the distribution of power. This dilemma cannot be avoided; thus, it is unlikely the sealed adoption controversy can ever be fully resolved.

2006 CanLII 19946 (ON SC)

[100] On the evidence before me, I cannot accept that a reasonable adoption scheme must be entirely open. At least in adoptions that took place when the legislative scheme provided for confidentiality, the evidence supports a finding that an adopted persons desire for complete openness in adoption must be balanced against the legitimate desire of the birth parents for confidentiality.

- Page 19 -

[105] I am satisfied, based on the evidence, that the disclosure sections of the CFSA represent a reasonable attempt to balance the competing interests of the adoption triad, all of which must be acknowledged and weighed against each other. THE LAW (a) Do the Secrecy Provisions of the CFSA Violate s.7 of the Charter [106] The applicant argues that the legislated denial to her of information which is in the hands of the government regarding her birth is a breach of her right to liberty and security of person as protected by s. 7 of the Charter. [107] Section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [108] While s. 7 is primarily engaged in the area of penal law, the Supreme Court of Canada has recognised a narrow range of circumstances in which these rights arise in a civil context. For this claim to qualify, the applicant must establish that: (i) the withholding of information has deprived her of her right to life, liberty or security of person; and, (ii) that this deprivation is contrary to the principles of fundamental justice. (See: R. v. Beare, [1988] 2 S.C.R. 387, para. 28, and Blencoe v. B.C. (Human Rights Commission), [2000] S.C.R. 307, para 47)[Blencoe]. [109] For the reasons that follow, I find that the challenged provisions do not breach s. 7. In reaching this conclusion, I am mindful that s. 7 must be interpreted liberally. (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para 199) [Chaoulli]. (i) Liberty [110] The applicant submits that the denial of access to the name of the person identified by her birth mother as her father is a violation of her right to liberty. She argues that this information is fundamental to her identity and that without it she is denied the ability to make basic choices going to the core of what it means to enjoy individual dignity and independence (See: Godbout v. Longueuil (City), [1997] 3 S.C.R. 844).
2006 CanLII 19946 (ON SC)

- Page 20 -


An individuals right to liberty is not absolute. As stated by Bastarache J. in Blencoe: Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom (para. 54).

[113] Here, the applicants freedom is constrained by the privacy interest of the man who chooses not to have his identity revealed to her. She does not have an absolute right to that information. (R. v. Edwards Books and Art Ltd., [1986] 2S.C.R. 713 at 785-786; B. (R) v. Childrens Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at 43-431). [114] The applicant relies on the United Nations Convention on the Rights of the Child, which was ratified by Canada in 1992. It mandates respect [of] the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference and states that in all actions concerning children the best interests of the child shall be the primary consideration and that the child shall have as far as possible, the right to knowhis or her parents. [115] However, the terms of the Convention do not establish the existence of a breach of the applicants right to liberty for the following reasons: (a) (b) the Convention does not establish a right of unfettered access to the identifying personal information of third parties who are not the legal parents of the child; the Convention does not supersede the express enactments of the Legislature (Pringle v. Alberta (Human Rights, Multiculturalism and Citizenship Commission), (2004) 246 D.L.R. (4th) 502 (Alta. Q.B.) at para. 60.); the Supreme Court of Canada has established that a childs best interest is not a principle of fundamental justice (Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76 at paras. 7-12.)[Canadian Foundation for Children]; and the applicant has no standing to assert the rights of any child.



[116] The impugned legislation attempts to balance the interests of persons in the applicants position with the interests of other implicated parties. I accept the Attorney Generals position that there is no liberty right to obtain identifying information about a person who has expressly

2006 CanLII 19946 (ON SC)

[111] The applicant has failed to establish the evidentiary basis for her assertion. As previously stated, Dr. Smith does not support her assertion that adopted persons must integrate their birth parents into the fabric of their identity. I reject the evidence given on behalf of the applicant supporting her position that knowing ones birth parents lies at the core of what it means to enjoy individual liberty.

- Page 21 -

refused to consent to its disclosure. The balancing of the applicants rights with those of the man she believes to be her father is something better left to the Legislature than the courts.
2006 CanLII 19946 (ON SC)


security of person

[117] The applicant submits that she has suffered psychological stress sufficient to deprive her of her security of person as a result of the ADUs denial to her of information that could lead to the identification of her father and the delay in providing the information that she did receive. However, she has failed to establish that the impugned provisions, when assessed objectively, have a serious and profound effect on the psychological integrity of adopted persons of reasonable sensibility. (See: New Brunswick (Minister of Health) v. G.(J.), [1999] 3 S.C.R. 46)[G.(J).]. [118] A law does not become unconstitutional simply because it upsets a particular claimant. There must be serious, state imposed psychological stress. In Blencoe, Bastarache J. stated at para. 57 that the psychological stress must be serious. Not all forms of psychological prejudice caused by the government will lead to automatic s. 7 violations. In G.(J.) at para. 60, the Court emphasised that the impugned state action must be greater than ordinary stress or anxiety. [119] As previously stated, no doctor or therapist who treated the applicant gave evidence in these proceedings. I draw a negative inference from the absence of direct evidence from anyone who has treated her. (Ng. v. Canadian Imperial Bank of Commerce, [2003] O.J. No. 3957 (S.C.J.) at para. 152.) [120] There are two reports contained in the productions, both prepared by doctors who treated the applicant. They are not, however, properly before the Court as evidence from these doctors as to the impact of non-disclosure on the applicants mental health. In any event, the reports show the extent of the applicants emotional and psychological problems are unrelated to the refusal to provide her with the information she sought. [121] The applicants assertions regarding the psychological effect on her of the disclosure provisions of the CFSA are based on theories regarding adoption itself. These are theories which I have rejected on the basis of their failing to meet the threshold for reliability. A phenomenon that is acknowledged to exist is a curiosity amongst adopted persons as to their birth family. However, this curiosity does not meet the test of serious psychological stress. [122] It is significant that the test is an objective one. The evidence precludes a finding that this applicant is a person of reasonable sensibilities. Her attitude towards and treatment of the staff of the ADU, her interaction with a university professor resulting in her involvement with the criminal justice system and her alleged pre-occupation with the identity of the person who denied her paternity and refused to consent to being identified are examples which show the applicant to be other than a person of reasonable sensibility. [123] Further, the legislative scheme itself is inconsistent with a breach of the applicants security of person rights. The Registrars discretion for disclosure under s. 168 is subject to review. This is inconsistent with it being a denial of the security of person. If the Registrars

- Page 22 -

[124] I accept the Attorney Generals position that on an objective standard, the applicant has not suffered serious state-imposed psychological stress and, hence, has not been deprived of her security of person rights. (iii) fundamental justice

[125] The applicant has not addressed the requirement that any deprivation of liberty or security of person be outside the principles of fundamental justice. In Chaoulli at para. 199, (per Binnie and Lebel JJ. dissenting, but not on this point) the court stated: Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice. The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. [126] Had I found an infringement of her rights, her claim would fail on this requirement. She has not identified any principle of fundamental justice implicated by the challenged provisions. [127] A principle of fundamental justice must fulfil the following criteria: 1. It must be a legal principle that provides meaningful content for the s. 7 guarantee while avoiding adjudication of public policy matters; There must be a significant societal consensus that the principle is vital or fundamental to our societal notion of justice; and, The principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results.



(See: Canadian Foundation for Children at paras. 8-11 and R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 113.)

2006 CanLII 19946 (ON SC)

exercise of discretion in denying the applicant the name of her unacknowledged birth father was wrong, then it was a failure at the implementation level[which] can be addressed at the implementation level. (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at para. 82). However, the applicant has not taken the steps available to her to obtain a review of the Registrars decision.

- Page 23 -

(b) Do the Secrecy Provisions of the CFSA Violate s.15 of the Charter (i) general principles [129] Section 15(1) of the Charter provides: 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. [130] The fundamental purpose of s. 15(1) is the protection of human dignity. This was enunciated by the Supreme Court of Canada, in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 51 [Law]: [T]he purpose of s.15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or a member of Canadian society, equally capable and equally deserving of concern, respect and consideration. [131] The court went on to identify what constitutes a violation of this right: Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application or presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable or less worthy of recognition as a human being or as a member of Canadian society.

2006 CanLII 19946 (ON SC)

[128] The unconditional disclosure of identifying personal information of third parties, even if they are the birth parents of the claimant, without regard to the privacy and confidentiality interests of the persons identified and without regard to any serious harm that might result from disclosure, fails to meet the above criteria. It is not a principle that is vital or fundamental to our societal notion of justice. It is instead a proposition of public policy that continues to be vigorously debated.

- Page 24 -

[132] Any examination of whether discrimination exists must be informed by an understanding of the meaning of human dignity. In Law at para. 53, Iacobucci J. defined human dignity as feeling self-respect and self-worth. He continued to state how it is harmed: Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society. [133] Finally, he identified the aspect of human dignity engaged by the equality guarantee: [Human dignity] concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? (at para. 53) [134] It is not every legislative choice that is subject to judicial scrutiny. The courts role in examining legislation is to protect against incursions on fundamental values, not to second guess policy decisions. (See: Andrews v. Law Society of British Columbia, [1998] 1 S.C.R. 143 at 194.) The court is not to be swayed by consideration of the wisdom of a law. Those considerations are to be addressed by the Legislature. [135] The court must undertake its analysis and reach its conclusions based on the record before it. It cannot consider what might have been put before it and cannot assume that a statutory provision has an effect that is not proved. (See: MacKay v. Manitoba, [1989] 2 S.C.R. 357, at 361 and 366 and Symes v. Canada, [1993] 4 S.C.R. 695 at 763). The burden of proof is on the applicant. [136] The analysis must be purposive and contextual. It must be undertaken from the perspective of the applicant. However, the focus of the analysis is both subjective and objective. (See: Law, para. 57.) (ii) the test for discrimination [137] In determining whether there has been discrimination under s. 15(1), the court must make the following three broad enquiries:
2006 CanLII 19946 (ON SC)

- Page 25 -

(a) (b) (c)

Does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics?
2006 CanLII 19946 (ON SC)

Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds? Does the differential treatment discriminate by imposing a burden on, or withholding a benefit from, the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? (See: Law, para. 88.)

[138] The Attorney General does not dispute that the CFSA draws a formal distinction between the applicant and others based on a personal characteristic. [139] Section 15 applies only to differential treatment based on grounds relating to personal characteristics listed in s. 15 or that are analogous to those grounds. The Attorney General takes no position as to whether adoption is an analogous ground. For the purposes of this application, I accept that it is an analogous ground, but make no finding. [140] It is the third of the enquiries that is at issue in this application. In my opinion, for the following reasons, the applicant has failed to satisfy this third component of the discrimination analysis. (iii) does the law have a purpose or effect that is discriminatory within the meaning of the equality guarantee? [141] The necessary analysis requires the identification of differential treatment in comparison to one or more other persons or groups. The applicant has selected non-adopted persons as the comparator group to be used for the courts enquiry. In light of the Attorney General not taking issue with this comparator, I accept it for the purposes of this application. It is left for another day to consider whether that comparator is, in fact, a proper one. [142] The applicant submits that adoption disclosure provisions under the CFSA discriminate against her because they strike at the heart of her dignity by denying her the rights that nonadopted individuals have with respect to information regarding their origins and of the right to participate in the decision to re-establish contact with their birth parents. She submits that this denial of information to adopted persons reinforces the shame surrounding their births and adoptions. [143] The relevant contextual factors for the third enquiry are set out in Law, at para. 88, as follows:

- Page 26 -

(a) (b) (c) (d)

pre-existing disadvantage, stereotyping, prejudice or vulnerability experience by the claimant or the claimants group;
2006 CanLII 19946 (ON SC)

the relationship between the ground on which the claim is based and the actual needs, capacity or circumstances of the claimant; the ameliorative purpose or effects of the impugned law; and, the nature and scope of the interest affected by the impugned law.

pre-existing disadvantage [144] The Attorney General does not dispute that the first contextual factor is present.

the relationship between the secrecy provisions and the actual needs, capacity or circumstances of the claimant [145] The denial of the information that is the basis of the applicants challenge is not the denial of a benefit conferred by law nor is it the imposition of a burden the law does not impose on others. The information the applicant seeks is available to non-adopted persons, not as a result of legislation, but through their personal circumstances. The applicant has not referred the court to any law to support her position to the contrary. [146] There is no credible evidence that shows this legislation promotes stereotypes or demeaning messages about adopted persons. The scheme does not make stereotypical assumptions about the applicant or adopted persons generally. It is not based on any misconception whereby adopted persons are unfairly portrayed as having undesirable traits, or traits that they do not possess. (Law, para. 64; Winko v. B.C. (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 88)[Winko]. The scheme regulates and limits the circumstances in which birth family information is available to adopted persons based on the Legislatures assessment of how best to balance their needs against the competing needs of the birth parents. [147] The disclosure scheme is a product of the Legislatures attempt to balance competing interests. The interest that conflicts with the applicants is the privacy interest of birth parents and, specifically in the applicants case, that of an unacknowledged birth parent. [148] Further, the impugned provisions allow for the access to information on an individualised basis. They allow adopted adults to decide whether and when to obtain biographical information and attempt to locate and contact birth relatives. They provide for an individualised determination of whether the health, safety or welfare of an individual adopted person requires the disclosure of identifying information that would otherwise not be made available. This is the antithesis of the logic of the stereotype (Winko, paras. 87-89).

- Page 27 -

[150] As stated by Iacobucci J. in Law at para. 59, the objective component means that it is not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law. He continues at para. 60, referring to LHeureux-Dub J. in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 56, stating that the relevant point of view is: that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as the claimant. [151] The applicants perspective has been outlined earlier in this decision. She characterises the effect of the impugned provisions on her in extreme and highly charged terms. However, even if her evidence as to the impact of the challenged provisions were reliable, it would not be determinative. Her subjective perspective is not the one to be applied in assessing discrimination under the Charter. [152] The applicant makes generalisations about adopted persons that are not borne out by the evidence. She asserts that the challenged legislation results in their bearing the burden of spending years of their lives searching for answers about their birth parentage because that information was taken away from them by the legislation. However, the credible evidence is not consistent with all adopted persons, or even the majority of them, having a need to search and spend years of theirs lives attempting to fulfil that need. [153] As previously stated, the challenged legislation represents an attempt by the Legislature to balance the needs of adopted persons seeking information about their birth relatives with the needs of those birth relatives who do not wish to have their confidentiality breached. In order to avoid a finding that the challenged provisions violate the Charter, it is not necessary that they correspond perfectly with the actual needs and circumstances of the claimant group. (Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 at para. 55)[Gosselin]. [154] While an open adoption scheme might have better met the needs of this applicant, and while her circumstances attract sympathy, this does not amount to a failure on the part of the legislation to consider the overall needs and circumstances of adopted persons. It is not an adopted persons access to information about his or her birth family that is determinative of an adoptions outcome. Rather, it is the adopted persons genetics, pre-natal difficulties, preadoption circumstances and his or her rearing environment (Childrens Adjustment to Adoption, supra at 11). Indeed, a review of the evidence leads to the conclusion that the primary source of the applicants problems is the circumstances of her childhood combined with her genetics. It is not the impugned legislation.

2006 CanLII 19946 (ON SC)

[149] I am mindful that the contextual inquiry which is undertaken to determine whether the challenged legislation violates the applicants dignity must be done with regard to the perspective of the claimant. The appropriate perspective is subjective-objective (Law, at para. 61).

- Page 28 -

[156] As La Forest J. stated in RJR-MacDonald Inc. v. Canada, [1995] 3 S.C.R. 199, dissenting, at para. 67: To require Parliament to wait for definitive social science conclusions every time it wishes to make social policy would impose an unjustifiable limit on legislative power by attributing a degree of scientific accuracy to the art of government which, in my view, is simply not consonant with reality. [157] Legislatures, as they attempt to mediate between the claims of competing groups, must strike a balance without absolute certainty as to where the lines must be drawn. (See: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at p. 993.) So long as they proceed on informed general assumptions that are not based on arbitrary and demeaning stereotypes, as the Legislature did in regards to the challenged provisions, they do not run afoul of s. 15. (Gosselin, at para. 56.) [158] The challenged provisions are tailored to the needs of all the members of the adoption triad and are a product of an attempt to balance those divergent needs with an individualised scheme. I find that there is reasonable correspondence between the challenged provisions and the needs, capacities and circumstances of adopted persons. [159] The evidence does not support a finding that a reasonable person in the position of the applicant would conclude that the challenged disclosure provisions are demeaning to the claimants dignity. This factor is inconsistent with a finding of discrimination. ameliorative purpose [160] The impugned legislation was aimed at facilitating adopted persons access to information about their birth families, and assisting them to locate and make contact with birth relatives (subject to their consent) while also encouraging adoption by protecting privacy. A reasonable person, in assessing whether the scheme treated the applicant as less worthy of respect and consideration than non-adopted persons, would take this into account. While the applicant does not view the scheme as ameliorative, in my opinion a reasonable person would. (Gosselin, at para. 62.) [161] This factor does not support a finding of substantive discrimination.

2006 CanLII 19946 (ON SC)

[155] I referred earlier to the evidence of the difficulty that continues to exist in reconciling the competing needs of the adoption triad. There is no agreement now, nor was there agreement when the challenged legislation came into force, as to the best solution. The applicant argues that the impugned legislation, even when it came into force, was not consistent with social science. Even if that were so, and I do not say that it was, it is not fatal to this legislation.

- Page 29 -

nature and scope of the interest affected [162] In Lovelace v. Ontario, [2000] 1 S.C.R. 950, at para. 88, the Supreme Court adopted the following passage from LHeureux-Dub J. in Egan: It stands to reason that a groups interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like. [163] As outlined earlier, the applicant has been able to obtain extensive information about her birth relatives. Indeed, it is only one piece of information that has been denied her: the name of the person identified as her father by her birth mother, but who denies paternity. The challenged scheme was the mechanism whereby this person was twice interviewed on the applicants behalf. The refusal to disclose his name to the applicant was based on his refusal to consent. [164] Rather than representing a complete exclusion of the applicant or failing to recognise her interests or the interests of adopted persons generally, the challenged legislation recognises and accommodates adopted persons, though in a more restrictive way than the applicant would like. Under the impugned provisions, the applicant has been provided with a considerable amount of a significant information, including: 1. 2. 3. 4. identifying information about the applicants deceased birth mother following a search conducted on the applicants behalf; identifying and contact information regarding a maternal birth uncle, which resulted in a reunion; copies of all the documents contained in the court file relating to the applicants adoption; and non-identifying information related to the applicant plus arrangements made for preparation of the birth mothers social history.


This amount of disclosure is also inconsistent with a finding of discrimination.

(iii) Conclusion [166] Taking into account the above contextual factors, I find that the challenged provisions are not discriminatory in the substantive sense intended by s. 15 (1). Accordingly, they do not violate s. 15(1) of the Charter. [167] In light of this finding, I need not address s. 1 justification nor the issue of remedies.

2006 CanLII 19946 (ON SC)

- Page 30 -

DISPOSITION [168] The application is dismissed in its entirety. If the parties are unable to agree on costs, they may address them in writing. The respondent will have 30 days from the release of this judgment to serve and file brief submissions. The applicant will have 30 days from receipt of the respondents submissions to serve and file her brief submissions. The respondent will have 15 days from receipt of the applicants submissions to reply, if so advised. RELEASED:

___________________________ FRANK J.

2006 CanLII 19946 (ON SC)

COURT FILE NO.: 04-CV-274248CM2 DATE: 20060607

2006 CanLII 19946 (ON SC)


B E T W E E N:

INFANT NUMBER 10968, also known as D. MARIE MARCHAND Applicant

- and -


_________________________________________ REASONS FOR JUDGMENT _________________________________________ FRANK J.


RELEASED: June 7, 2006

2006 CanLII 19946 (ON SC)