L.A., 2014 ONCJ 558

Court File and Parties

Milton Registry No.: A48/88 Date: 2014-10-27 Ontario Court of Justice

In the Matter of: A motion under subsection 162(2) of the Child and Family Services Act, R.S.O. 1990, c. 11, as amended, by L.A. for an order to unseal an adoption file

Before: Justice Sheilagh M. O'Connell

Heard: In chambers

Endorsement inscribed on: 27 October 2014

No appearances

Endorsement

[1]

Overview

This is the request of the adoptive father, pursuant to a 14B motion without notice, for a court order to open and release the adoption file in this matter, to the "Fundacion Chilena de La Adopcion" in Santiago, Chile.

[2]

Background

The supporting affidavit provides very little information. Mr. A. deposes that, in order to finalise an adoption in Chile, the Chilean lawyer requires a copy of this court's entire adoption file in order to "change the name of my adopted daughter to her actual name." The child apparently now lives in Chile. The original adoption order was made in this court in 1988, approximately twenty-six years ago. Mr. A. has apparently advised the court staff here that the entire adoption file needs to be copied for the Chilean authorities, not just a copy of the adoption order.

[3]

Legal Framework

A court order is required to open an adoption file pursuant to subsection 162(2) of the Child and Family Services Act, R.S.O. 1990, c. 11, as amended. Subsection 162(2) provides that all documents used on an application for an adoption order shall be sealed by the court and shall not be opened for inspection except by court order.

[4]

Analysis

Although there is very little jurisprudence regarding when a court should unseal an adoption file, the authorities do suggest that an order unsealing an adoption file should be made in exceptional circumstances. See Ferguson v. Ontario Director of Child Welfare, 1983) 294, 142 D.L.R. (3d) 609; affirmed at Ferguson v. Ontario Director of Child Welfare, 1983) 78, 1 O.A.C. 236, 3 D.L.R. (4th) 178, 36 R.F.L. (2d) 405, 41 C.P.C. 217.

5There should be, in my view, some evidence of compelling and important circumstances, either affecting the child's interests or the adoptive parents' interests. For example, in Droit de la famille 140, J.E. 84-534, Youth Court Judge Michèle Rivet partially unsealed an adoption file for medical or genetic grounds where an adopted child diagnosed with leukemia required a bone marrow transplant from a biological sibling. The court allowed unsealing of the file but restricted disclosure to the information needed by the hospital staff and barred any disclosure of identities between the parties.

6In Re Victor C., 2014 ONCJ 366, I ordered the partial unsealing of the file to provide a further copy of the adoption order to the adoptive father. The adoptive father originally had the adoption order but had lost it over the past forty years. His adopted son had been recently notified of a possible inheritance from his biological father in Germany and needed the adoption order to prove his identity. I found that the applicant's intention was an appropriate and beneficial reason to unseal the adoption file.

7In this motion, there is insufficient evidence for me to determine why the entire adoption file should be unsealed and copied and forwarded to an unknown agency. I require further evidence regarding what documents are required, why the entire file needs to be copied, why the documents are needed in the first place, who would have access to the documents and for what reason, including any compelling circumstances affecting the child or the adoptive parents. It would be also helpful to have a letter or affidavit from the person requiring the information setting out the reasons for this information and why it is necessary.

[8]

Disposition

Accordingly, the motion is adjourned to a hearing before me so that the adoptive father can provide the information required above. The hearing date should be scheduled by the trial coordinator at a date convenient to the applicant and the court.