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BILL NO. 12





Government Bill




4th Session, 56th General Assembly
Nova Scotia
45 Elizabeth II, 1996




An Act to Provide for

Adoption Information





The Honourable James A. Smith, M.D.
Minister of Community Services




Halifax
Printed by Queen's Printer for Nova Scotia







An Act to Provide for

Adoption Information

. Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Adoption Information Act.

2 The purpose of this Act is to

(a) establish the criteria by which

(i) persons who are adopted and of the age of majority may have access to information concerning their birth families,

(ii) birth parents and adoptive parents of adopted persons may have access to information concerning their children, and

(iii) relatives and other persons may, in special circumstances, have access to information concerning the birth family of adopted persons;

(b) establish controls for adoptive parents over access by adopted persons under the age of majority to information concerning their birth families;

(c) provide for the circumstances under which reunions of persons separated as a consequence of adoption will be facilitated; and

(d) establish an appeal procedure for applications made pursuant to this Act.

3 In this Act,

(a) "adopted person" means a person who was adopted pursuant to the Children and Family Services Act or any predecessor to that Act and, unless otherwise specifically provided, has attained the age of majority;

(b) "adoption order" means a court order granting the adoption of an adopted person;

(c) "adoptive name" means the name of an adopted person established or confirmed by the granting of an adoption order;

(d) "adoptive parent" means a person who has adopted a child pursuant to the Children and Family Services Act or any predecessor to that Act;

(e) "Appeal Committee" means the Appeal Committee established pursuant to this Act;

(f) "applicant" means a person who applies for information pursuant to Section 13, 14, 15 or 16;

(g) "birth certificate" means a certificate issued by the Registrar of Vital Statistics based on information contained in an original birth registration;

(h) "birth father" means the biological father of an adopted person

(i) who is identified as such on the birth certificate of the adopted person,

(ii) whose paternity has been confirmed in court proceedings relating to an adopted person,

(iii) who has acknowledged his paternity in the record of any court proceedings, or

(iv) who otherwise proves, to the satisfaction of the Director, that he is the biological father of an adopted person;

(i) "birth mother" means the biological mother of an adopted person;

(j) "birth parent" means the birth mother or the birth father;

(k) "birth sibling" means a biological brother or biological sister of an adopted person, of the whole-blood or half-blood, who is of the age of majority;

(l) "Chair" means the Chair of the Appeal Committee;

(m) "contact" means direct or indirect contact with a person, either face-to-face or by written communication, telephone, or any other means whatsoever;

(n) "Director" means the Director of Child Welfare appointed under the Children and Family Services Act or any person designated by the Director to act in the absence of, or on behalf of, the Director;

(o) "executor of the estate" includes a person charged by law with the administration of the estate;

(p) "family member" means the birth parent, the adopted person or the birth sibling in respect of whom an applicant has applied for information pursuant to Section 13, 14, 15 or 16;

(q) "identifying information" means any information the disclosure of which, alone or in combination with other information, in the opinion of the Director, would likely reveal the identity of the person to whom it relates and, without restricting the generality of the foregoing, includes information with respect to that person's name, residence or occupation;

(r) "Minister" means the Minister of Community Services; . (s) "non-identifying information" means any information the disclosure of which, alone or in combination with other information, in the opinion of the Director, would not likely reveal the identity of the person to whom it relates;

(t) "Passive Adoption Register" means the Passive Adoption Register established pursuant to this Act;

(u) "Registrar of Vital Statistics" means the Registrar under the Vital Statistics Act;

(v) "relative" means a person who is of the age of majority and is the husband, wife, son, daughter, brother, sister, parent, grandparent, grandchild, uncle or aunt of another person, whether the relationship to the other person is by whole-blood, half-blood or adoption, unless otherwise specifically provided.

APPLICATION AND ADMINISTRATION

4 This Act applies only where the adoption order relating to an adopted person was granted in the Province.

5 Notwithstanding the Freedom of Information and Protection of Privacy Act, the use of, disclosure of and access to information and records regarding adoptions, regardless of where the information or records are located, is governed by this Act.

6 The Minister has the general supervision and management of this Act and the regulations.

7 (1) The Director has the powers and shall perform the duties conferred or imposed on the Director by this Act or by the Minister.

(2) Subject to the regulations, the Director may delegate to any person or class of persons any of the Director's powers, duties or functions pursuant to this Act or the regulations and shall, when so delegating, specify the powers, duties or functions to be exercised by the person or class of persons to whom the Director delegates.

(3) The delegation of the powers, duties or functions of the Director pursuant to subsection (2) shall be in writing and may include any terms or conditions the Director considers advisable.

8 There may be appointed in accordance with the Civil Service Act such persons as are necessary for the administration and enforcement of this Act and the regulations.

PASSIVE ADOPTION REGISTER

9 (1) The Director shall establish and maintain a Passive Adoption Register for the purpose of

(a) enabling disclosure of non-identifying information that relates to an adoption; and

(b) the facilitation of reunions between persons whose names are entered in the Passive Adoption Register and who have been separated as a consequence of an adoption,

in accordance with this Act and the regulations.

(2) The information in the Passive Adoption Register is confidential and shall be available only as provided pursuant to this Act and the regulations.

10 (1) Subject to the regulations, the Director shall enter in the Passive Adoption Register the name of

(a) an adopted person;

(b) an adopted person under the age of majority, with the written consent of an adoptive parent of that person;

(c) a birth parent;

(d) an adoptive parent, with the written consent of the adopted person;

(e) a birth sibling, with the written consent of a birth parent;

(f) a relative of an adopted person, with the written consent of the adopted person; or

(g) a relative of a birth parent, with the written consent of the birth parent,

who applies to be so registered.

(2) Where

(a) a person whose consent is required pursuant to subsection (1) is deceased;

(b) a person is required to apply with the consent of another pursuant to subsection (1), and that person provides evidence to the Director that the person has conducted a reasonable search to locate the person whose consent is required and has failed to locate the person; or

(c) the regulations prescribe that the consent required pursuant to subsection (1) may be dispensed with,

the Director may dispense with such consent.

11 (1) Any person whose name is entered in the Passive Adoption Register may apply to the Director to receive non-identifying information relating to the applicable adoption.

(2) The Director shall disclose to the person who makes an application pursuant to subsection (1) all non-identifying information in the Director's possession that relates to the adoption, except information that, in the opinion of the Director, poses a risk to the health, safety or well-being of any person to whom the non-identifying information relates.

12 (1) The Director shall, upon receipt of an application by a person whose name is entered in the Passive Adoption Register, facilitate a reunion between that person and others of the family whose names are registered, except where, in the opinion of the Director, such a reunion poses a risk to the health, safety or well-being of any person to whom the reunion relates.

(2) Where a person whose name is entered in the Passive Adoption Register is deceased and another person whose name is entered in the Passive Adoption Register has applied to the Director requesting the facilitation of a reunion, the Director may release identifying information concerning the deceased person to the person who has applied, except identifying information that, in the opinion of the Director, poses a risk to the health, safety or well-being of any person to whom the identifying information relates.

ACCESS TO AND DISCLOSURE OF IDENTIFYING INFORMATION

13 An adopted person may apply to the Director for disclosure of

(a) the adopted person's birth name;

(b) the name of the adopted person's birth mother;

(c) the name of the adopted person's birth father;

(d) where there are adopted birth siblings of an adopted person, the birth names of those persons;

(e) where there are adopted birth siblings of an adopted person, the adoptive names of those persons.

14 A birth parent may apply to the Director for disclosure of the adoptive name of an adopted person of whom the birth parent is a birth parent.

15 (1) A birth sibling, with the written consent of a birth parent, may apply to the Director for disclosure of the adoptive name of an adopted person of whom the birth sibling is a birth sibling. . (2) Where

(a) the birth parent whose consent is required pursuant to subsection (1) is deceased;

(b) the birth sibling provides evidence to the Director that the birth sibling has conducted a reasonable search to locate the birth parent whose consent is required pursuant to subsection (1), and has failed to locate the birth parent; or

(c) the regulations prescribe that the consent required pursuant to subsection (1) may be dispensed with,

the Director may dispense with such consent.

16 (1) Where an adopted person has died, a relative of the adopted person may apply to the Director for disclosure of

(a) the adopted person's birth name;

(b) the name of the adopted person's birth mother;

(c) the name of the adopted person's birth father;

(d) where there are adopted birth siblings of an adopted person, the birth names of those persons; or

(e) where there are adopted birth siblings of an adopted person, the adoptive names of those persons.

(2) Where a birth parent of an adopted person has died, a relative of the birth parent may apply to the Director for disclosure of the adoptive name of the adopted person whose birth parent is deceased.

(3) A relative who applies pursuant to subsection (1) or (2) shall submit, with the application, proof of death of the adopted person or birth parent, as the case may be.

17 A person who applies to the Director pursuant to Section 13, 14, 15 or 16 shall supply any proof of identity required by the Director.

18 The Director shall not supply to an applicant information regarding a family member that is requested by the applicant pursuant to Section 13, 14, 15 or 16 without first complying with Section 19.

19 (1) Subject to the regulations, upon receiving an application pursuant to Section 13, 14, 15 or 16, the Director shall conduct a discreet inquiry to locate the family member regarding whom information is being requested.

(2) Upon receiving an application from an adopted person pursuant to Section 13, where the Director determines that the family member being sought is a birth parent who has previously signed a no-contact request pursuant to the Children and Family Services Act, the Director may, notwithstanding that a no-contact request has been signed, contact the birth parent to confirm the birth parent's wish for no contact with the adopted person.

(3) Where the Director is successful in locating a family member as the result of an inquiry conducted pursuant to subsection (1), the Director shall, prior to releasing to the applicant the information concerning the family member requested pursuant to Section 13, 14, 15 or 16, as the case may be, obtain the written consent of the family member to the release of the information.

(4) Where a family member provides the written consent required pursuant to subsection (3), the Director shall release to the applicant the information requested, except information that, in the opinion of the Director, poses a risk to the health, safety or well-being of any person to whom the information relates.

(5) Where a family member refuses to provide the written consent required pursuant to subsection (3), the Director shall

(a) advise the family member that the family member may file with the Director a written statement including

(i) the family member's reasons for not wishing to disclose identifying information,

(ii) where the family member is a birth parent, a brief summary of any available information about the medical and social history of the birth parents and their families, or

(iii) any other non-identifying information;

(b) advise the family member that, if a statement is filed pursuant to clause (a), the non-identifying information contained in the statement will be given to the applicant; and

(c) give to the applicant the non-identifying information contained in the statement.

(6) Where the Director determines, as a result of an inquiry conducted pursuant to subsection (1), that the family member is deceased, the Director may release identifying information to the applicant, except where the identifying information, in the opinion of the Director, poses a risk to the health, safety or well-being of any person to whom the identifying information relates.

DISCLOSURE OF INFORMATION IN OTHER CIRCUMSTANCES

20 (1) Where . (a) a birth parent, or any other birth relative of an adopted person, regardless of the age of the adopted person, has named the adopted person; or

(b) an adopted person has named a birth parent of the adopted person or any other birth relative of the adopted person,

as a beneficiary under the person's will, the executor of the estate may apply, in writing, to the Director for assistance in locating the adopted person, birth parent or birth relative, as the case may be.

(2) Subject to the regulations, upon receiving an application pursuant to subsection (1), the Director shall conduct a discreet inquiry to locate the adopted person, birth parent or birth relative, as the case may be.

(3) Where the Director conducts an inquiry pursuant to subsection (2) and is successful in locating the adopted person, the birth parent or the birth relative, as the case may be, the Director shall not release any identifying information concerning the adopted person, the birth parent or the birth relative to the executor of the estate unless

(a) in the case of an adopted person, such person has given written consent to the release of the information;

(b) in the case of an adopted person under the age of majority, the adoptive parents of the person have given written consent to the release of the information; or

(c) in the case of a birth parent or birth relative, the birth parent or the birth relative, as the case may be, has given written consent to the release of the information.

(4) Where identifying information is released to the executor of the estate pursuant to subsection (3), the executor of the estate shall

(a) use such information only for the purpose for which it is intended; and

(b) not disclose the identifying information to any other person without the written consent of the adopted person, the adoptive parents of an adopted person under the age of majority or the birth parent or birth relative, as the case may be.

21 (1) Where a written request is made to the Director by or on behalf of the Minister of Indian Affairs and Northern Development for Canada, the Director shall forward to that Minister a certified copy of the adoption order regarding an adopted person together with such other identifying information or non-identifying information, contained in the records of the Director, as may be necessary to establish entitlement of the adopted person to be recognized as an Indian within the meaning of the Indian Act (Canada).

(2) The Director shall only disclose information pursuant to subsection (1) where the Director is satisfied that the information . (a) will only be used by the Minister of Indian Affairs and Northern Development for Canada for the purpose stated in subsection (1); and

(b) will not be disclosed by that Minister to the adopted person, the adoptive parents of the adopted person or to any other person whatsoever.

22 (1) Where disclosure of information in the records of the Director, including information obtained by the Director pursuant to Section 28, to

(a) a child-protection agency or child-placing agency, within the meaning of the Children and Family Services Act; or

(b) a comparable agency that is recognized in another jurisdiction,

is, in the opinion of the Director, necessary to protect a child from abuse or neglect, the Director may disclose the information to the agency.

(2) The Director may disclose information in the records of the Director, including information obtained by the Director pursuant to Section 28, to a public body or law-enforcement agency in Canada to assist in an investigation

(a) undertaken with a view to a law-enforcement proceeding; or

(b) from which a law-enforcement proceeding is likely to result.

(3) An agency referred to in subsection (1) or a public body or law-enforcement agency referred to in subsection (2) shall not use or disclose information provided pursuant to subsection (1) or (2) except for the purpose for which it is provided.

23 (1) Notwithstanding any provision of this Act, in compelling circumstances affecting the health, safety or well-being of an adopted person, an adopted person under the age of majority, a birth parent or a birth sibling, the Director may contact

(a) a birth parent;

(b) where the birth parent is not available, a relative of the birth parent;

(c) an adopted person;

(d) an adoptive parent,

to give to or obtain from that person any information affecting the health, safety or well-being of an adopted person, an adopted person under the age of majority, a birth parent or a birth sibling, as the case may be.

(2) Notwithstanding any provision of this Act, in compelling circumstances affecting the health of a birth relative, where the Director

(a) conducts a discreet inquiry to locate an adopted person, a birth parent, a birth sibling or other birth relative; and

(b) is unsuccessful in locating the person,

the Director may release to the birth relative any information concerning the person who cannot be located.

(3) Notwithstanding any other provision of this Act, in compelling circumstances affecting the health of an adopted person under the age of majority, where the Director

(a) is requested by the adoptive parent to search for a birth relative of the adopted person under the age of majority; and

(b) conducts a discreet inquiry to locate the birth relative and is unsuccessful,

the Director may release to the adoptive parent any information concerning the birth relative who cannot be located.

APPEALS

24 Any person entitled to make an application pursuant to this Act may appeal the Director's decision, action or failure to act, that relates to the person's application.

25 (1) The Minister shall establish an Appeal Committee whose function is to hear appeals made pursuant to Section 24.

(2) The Appeal Committee is composed of

(a) the Chief Judge of the Family Court or a judge of the Family Court designated by the Chief Judge; and

(b) two other persons appointed by the Minister.

(3) The member of the Appeal Committee pursuant to clause (2)(a) is the Chair of the Appeal Committee.

(4) The persons appointed pursuant to clause 2(b) shall be appointed for a term of not more than three years and may be re-appointed.

(5) The Chair of the Appeal Committee and one other member of the Appeal Committee constitute a quorum.

(6) Each member of the Appeal Committee shall be paid such remuneration and reimbursed for such expenses as the Governor in Council determines.

26 (1) A request for an appeal pursuant to Section 24 shall . (a) be in writing;

(b) be filed with the Chair of the Appeal Committee; and

(c) identify and state the decision, action or failure to act being appealed.

(2) Upon receipt of a request for an appeal, the Chair shall request that the Director submit to the Appeal Committee, and the Director shall submit, a statement setting out the reasons for the Director's decision in the matter or the reason for the Director's action or failure to act.

(3) Upon receipt of a request from the Chair for correspondence and records relating to a matter to be heard by the Appeal Committee, the Director shall make available to the Appeal Committee all correspondence and records relating to the matter.

(4) The proceedings of the Appeal Committee shall be informal in nature and shall be held in private.

(5) The Appeal Committee may adopt rules of procedure for its proceedings.

(6) The following persons are entitled to make representations to the Appeal Committee:

(a) the person who appeals pursuant to Section 24;

(b) the Director or representative of the Director; and

(c) such other persons as the Appeal Committee may authorize.

(7) The Appeal Committee shall consider an appeal pursuant to Section 24 within ninety days of receiving the request for the appeal and shall, within thirty days of hearing the appeal, render a decision as to whether or not the Director's decision, action or failure to act was made or done, as the case may be, in accordance with this Act and the regulations.

(8) Where the Appeal Committee finds that the Director's decision, action or failure to act was not made or done in accordance with this Act and the regulations, the Appeal Committee shall order the Director to comply with this Act and the regulations and provide the Director with instructions, in accordance with this Act and the regulations, regarding the manner in which the Director shall comply.

(9) The decision of the Appeal Committee is final and binding on all the parties.

(10) The person who appeals pursuant to Section 24 and the Director shall be notified in writing of the Appeal Committee's decision and the reasons for its decision.

GENERAL

27 The Minister may, for the purpose of obtaining information necessary to carry out the intent and purpose of this Act and the regulations, enter into agreements with

(a) the Government of Canada, the government of a province, the government of a foreign jurisdiction or an official or agency of any of those governments; or

(b) a person or group of persons, whether incorporated or not.

28 (1) Notwithstanding any other Act, the Director shall be given, upon written request, any information that

(a) is in the custody or control of a public body as defined in the Freedom of Information and Protection of Privacy Act; and

(b) is necessary to enable the Director to locate a person for the purpose of this Act and the regulations.

(2) Without limiting the generality of subsection (1), the Registrar of Vital Statistics, upon written request from the Director and payment of any required fee, shall give to the Director any information in the custody or control of the Registrar of Vital Statistics concerning the birth, adoption, marriage or death of a person.

29 No action lies or shall be instituted against any person for anything done or omitted to be done, in good faith, in the exercise or performance of, or intended exercise or performance of,

(a) a power, duty or function conferred by this Act or the regulations; or

(b) a power, duty or function on behalf of, or under the direction of, a person on whom the power, duty or function is conferred by this Act or the regulations.

30 (1) An application made to the Director pursuant to Sections 9 to 19 shall be made in the form determined by the Director.

(2) The Director may prescribe

(a) additional circumstances in which forms are required; and

(b) the design and contents of the forms.

31 The advisory committee appointed by the Minister pursuant to Section 88 of the Children and Family Services Act shall, in addition to the functions of the advisory committee specified in that Section, annually review the provisions of this Act, the regulations and the services relating to them and report annually to the Minister concerning the operation of the Act, regulations and services and whether the principles and purpose of this Act are being achieved.

32 Except where the regulations otherwise require, the Director may require fees or charges, in the amounts set out in the regulations, with respect to applications, entering names in the Passive Adoption Register, the supply of documents or information, the provision of services to any person pursuant to this Act or the regulations or for other things done pursuant to this Act or the regulations.

33 (1) Every person who contravenes subsection 20(4) or 22(3) is guilty of an offence and is liable upon summary conviction to a fine not exceeding five thousand dollars or, in default thereof, to a term of imprisonment not exceeding six months.

(2) Every person who contravenes subsection 35(4) is guilty of an offence and is liable upon summary conviction to a fine not exceeding ten thousand dollars, or to a term of imprisonment not exceeding two years, or to both.

(3) Every person who contravenes a provision of this Act or the regulations, other than as set forth in subsection (1) or (2), is guilty of an offence and is liable upon summary conviction to a fine not exceeding two thousand dollars or, in default thereof, to a term of imprisonment not exceeding six months.

34 A prosecution for an offence pursuant to this Act shall not be commenced more than two years after the date the offence was committed.

35 (1) The Family Court, including a judge thereof, has exclusive original jurisdiction over the prosecution of an offence against this Act or the regulations.

(2) Unless the Family Court, including a judge thereof, so orders otherwise, a proceeding for an offence pursuant to this Act or the regulations shall be held in private.

(3) The court record relating to a proceeding for an offence pursuant to this Act or the regulations is confidential and the public shall not have access to the court record without the consent of the Director.

(4) A person shall not make known to the public or a section of the public, by any means, the identity of a party to a proceeding for an offence pursuant to this Act or the regulations, or information from which the identity of such a party may readily be ascertained.

36 (1) The Governor in Council may make regulations

(a) concerning the conditions that must be satisfied by an adoptive person under the age of majority and an adoptive parent to establish eligibility to have the adoptive person's name entered in the Passive Adoption Register;

(b) prescribing the circumstances under which consent to apply for

(i) entry of a name in the Passive Adoption Register, or

(ii) disclosure of the adoptive name of an adopted person of whom a person is a birth sibling,

may be dispensed with by the Director;

(c) respecting the payment of fees or charges for applications, entering names in the Passive Adoption Register, the supply of documents or information, the provision of services or for other things done pursuant to this Act or the regulations;

(d) respecting the circumstances under which the Director may waive or reduce fees or charges otherwise payable pursuant to this Act or the regulations;

(e) respecting the manner in which a discreet inquiry shall be conducted and the processes to be followed in undertaking a discreet inquiry pursuant to this Act;

(f) respecting the qualifications of a person or class of persons to whom the Director delegates any of the Director's powers, duties or functions pursuant to this Act or the regulations;

(g) defining any word or expression used but not defined in this Act;

(h) expanding the meaning of any word or expression used in this Act;

(i) deemed necessary or advisable to carry out effectively the intent and purpose this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

37 Subsections 85(5) and (6) of Chapter 5 of the Acts of 1990, the Children and Family Services Act, are repealed and the following subsections substituted:

(5) The Minister may open the sealed packet kept by the Minister for the purpose of obtaining

(a) the information required to issue a certificate of adoption; or

(b) such information as may be disclosed pursuant to the Adoption Information Act and regulations made thereunder,

and, having obtained the information, shall immediately reseal the packet.

(6) Any agency or employee thereof or servant of Her Majesty in right of the Province who discloses any information, except pursuant to subsection (4) or (5) or upon a court order, is guilty of an offence and is liable upon summary conviction to a fine not exceeding five thousand dollars or, in default thereof, to a term of imprisonment not exceeding six months.

38 Clause 99(ad) of Chapter 5 is repealed.

39 This Act comes into force on January 1, 1997, or such earlier day as the Governor in Council orders and declares by proclamation.



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