Infant Number 10968, also known as D. Marie Marchand v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Infant Number 10968 v. Ontario]

88 O.R. (3d) 600

Court of Appeal for Ontario,

MacPherson, Blair and LaForme JJ.A.

November 16, 2007

Family law -- Adoption -- Provisions of Child and Family Services Act which require consent before identifying information about birth parent can be disclosed not violating s. 7 or s. 15 of Charter -- Canadian Charter of Rights and Freedoms, ss. 7, 15 -- Child and Family Services Act, R.S.O. 1990, c. C.11. [page601]

The applicant was adopted as an infant. She was unsuccessful in her attempt to discover the identity of her birth father through the disclosure provisions of the Child and Family Services Act because the man named by her birth mother as her father denied paternity and refused to consent to the disclosure of his name. The applicant brought an application challenging the constitutionality of the disclosure provisions of the Act. The application judge found that the impugned legislation did not violate the applicant's rights under the Canadian Charter of Rights and Freedoms and dismissed the application. The applicant appealed.

Held, the appeal should be dismissed.

The application judge did not err in finding that the applicant did not have standing to challenge s. 28 of the Vital Statistics Act, R.S.O. 1990, c. V.4 and ss. 161 and 170-174 of the Child and Family Services Act as she was not affected by those provisions.

The disclosure provisions of the Child and Family Services Act did not violate the applicant's equality rights under s. 15 of the Charter. The provisions did not make stereotypical assumptions about the applicant or adopted persons generally. A reasonable person in the applicant's position would not conclude that the provisions were demeaning to her dignity. The disclosure provisions did not infringe s. 7 of the Charter. The unconditional disclosure of identifying personal information of third parties -- without regard to their privacy and confidentiality interests, and without regard to any serious harm that might result from disclosure -- is not a principle of fundamental justice.

PPEAL from the judgment of Frank J. (2006), 2006 19946 (ON SC), 81 O.R. (3d) 172, [2006] O.J. No. 2387 (S.C.J.), dismissing an application attacking the constitutionality of provisions of the Child and Family Services Act.

Cases referred to Cheskes v. Ontario (Attorney General) (2007), 2007 38387 (ON SC), 87 O.R. (3d) 581, [2007] O.J. No. 3515 (S.C.J.); Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49 Statutes referred to Adoption Information Disclosure Act, 2005, S.O. 2005, c. 25 Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 7, 15 Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 161-168 [as am.], 170-174 [rep.] Criminal Code, R.S.C. 1985, c. C-46, ss. 377, 378 Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 Vital Statistics Act, R.S.O. 1990, c. V.4, s. 28

D. Marie Marchand, appellant acting in person. Janet E. Minor and S. Zachary Green, for respondents.

[1] BY THE COURT: -- The appellant, who was adopted as a baby, wants to know the identity of her birth father. She has tried to obtain this information through the disclosure provisions [page602] under the Child and Family Services Act, R.S.O. 1990, c. C.11 (the "CFSA") but with no success. The man named by her birth mother as her birth father denies paternity and refuses to consent to the disclosure of his name.

[2] The appellant challenges the constitutional validity of the CFSA's adoption disclosure provisions. She also takes issue with s. 28 of the Vital Statistics Act, R.S.O. 1990, c. V.4 ("VSA"), which allows for an adopted person's original birth registration to be sealed and replaced with a new birth registration in accordance with the adoption order. She submits that these provisions, which thwart her right to know who she is and where she came from, violate s. 7 and s. 15 of the Charter and should be declared of no force and effect. She also seeks an order allowing her access to information about her birth father.

[3] The respondent defends the regime as the legislature's attempt to balance two competing demands: a demand for access to information and a demand for protection of privacy. Even among members of the "adoption triad" (i.e., adopted persons, adoptive parents, and birth parents) there is a broad divergence of views on how the balance should be struck. The application judge was correct, submits the respondent, in holding that the CFSA's disclosure regime appropriately balances the competing demands and does not infringe the Charter rights of adopted persons.

[4] The application judge held that Ms. Marchand only had standing to challenge ss. 162-168 of the CFSA (and not ss. 161 and 170-174 of the CFSA or s. 28 of the VSA) and dismissed her application. Frank J. held that there is no liberty right to obtain identifying information about a person who has expressly refused to consent to its disclosure. She also held that the applicant had not been deprived of her security of person rights. Even if her rights were infringed, the applicant had not identified any principle of fundamental justice implicated by the impugned provisions. Finally, she concluded that there was no breach of the applicant's s. 15 Charter rights.

Preliminary Matter

[5] In November 2005, the Adoption Information Disclosure Act, 2005, S.O. 2005, c. 25 ("AIDA") received royal assent. The key provisions of AIDA were proclaimed into force on September 17, 2007. 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 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" or a "no contact form". Birth parents and [page603] adopted adults may also apply to the Child and Family Services Review Board for an order prohibiting disclosure where, because of exceptional circumstances, the order is appropriate to prevent sexual harm or significant physical or emotional harm.

[6] AIDA repeals every section of the CFSA challenged by the appellant with the exception of s. 161 (parent to be informed of adoption order), s. 162(1) and (3)(a) and (c)-(d) (persons who receive adoption order) and s. 165(5) (Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 does not apply). According to the official Table of Proclamations, all of AIDA's provisions have now been proclaimed into force, with the exception of one (which has no relevance to this appeal). The new regime has already been subject to constitutional challenge in the Superior Court. In a decision released on September 19, 2007, Belobaba J. held that amendments to the VSA violated s. 7 of the Charter and were not saved by s. 1 and so were of no force and effect: Cheskes v. Ontario (Attorney General) (2007), 2007 38387 (ON SC), 87 O.R. (3d) 581, [2007] O.J. No. 3515 (S.C.J.). AIDA's amendments to the CFSA were not challenged in Cheskes.

[7] At the commencement of the hearing of this appeal, the panel raised the issue of whether the appeal was moot in light of the proclamation of AIDA. The appellant's position was that the appeal was not moot. Counsel for the respondent agreed on the basis that at least some of the relief sought by the appellant in her application -- e.g., damages -- required a determination of the validity of the CFSA when it was still in force. We accepted this joint submission and agreed to hear the appeal on the merits. As it turns out, later on the first day of the appeal hearing, the Ontario Government announced that it would not appeal the Cheskes decision. Instead, it would introduce new legislation that "would let parents and children involved in past adoptions veto disclosure of information" (Globe and Mail, 14 November 2007, p. A8). Since this announcement probably presages a return to something like the repealed CFSA scheme, it provides another reason for hearing this appeal on the merits.

The Appeal

Section 15

[8] The appellant's principal argument, developed comprehensively, was that the CFSA violated her equality right under s. 15 of the Charter.

[9] The application judge held that the CFSA scheme does not make stereotypical assumptions about the applicant or adopted persons generally. The scheme regulates and limits the circumstances [page604] in which family information is made available to adopted persons based on the legislature's assessment of how best to balance their needs against the competing needs of birth parents. The scheme allows for access on an individualized basis against the backdrop of an assessment of the adoptee's health, safety and welfare. The application judge stated [at paras. 158 and 159]:

The challenged provisions are tailored to the needs of all members of the adoption triad and are a product of an attempt to balance those divergent needs with an individualized scheme. I find that there is reasonable correspondence between the challenged provisions and the needs, capacities and circumstances of adopted persons.

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 claimant's dignity. This finding is inconsistent with a finding of discrimination.

[10] In our view, this analysis is sound. The application judge's review of the evidentiary record, including the positions of various experts in the adoption field, supports her analysis. Moreover, her legal analysis is a fair application of the leading equality cases, especially Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, whose framework she faithfully followed.

Section 7

[11] The appellant's second substantive argument is that the CFSA provisions violate her Charter s. 7 rights to liberty and security of the person. The application judge held that the provisions did not infringe either of these rights.

[12] In our view, it is not necessary to pass judgment on the "liberty" and "security of the person" aspects of the application judge's reasons. That is because we agree with the application judge's analysis and conclusion on the "principles of fundamental justice" component of the s. 7 analysis [at paras. 127 and 128]:

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;

(2) There must be a significant societal consensus that the principle is "vital or fundamental to our societal notion of justice"; and

(3) 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 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, at para. 113.) [page605]

The unconditional disclosure of identifying personal information of third parties, even if they are 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.

[13] The appellant also contends that the application judge erred by concluding that the appellant did not have standing to challenge s. 28 of the VSA and ss. 161 and 170-174 of the CFSA.

[14] The appellant was not affected by the re-registration provisions of the VSA because her birth was not re-registered after her adoption. As a result, her birth registration was not sealed and, in fact, she received a copy of it approximately eight months before the application hearing. Accordingly, we can see no basis for interfering with the application judge's assessment that the proper person to challenge s. 28 of the VSA would be someone directly affected by it. Similarly, the appellant has not been denied information pursuant to several of the provisions of the CFSA and, therefore, we would not overturn the application judge's exercise of discretion in not granting the appellant standing to challenge those provisions.

[15] Finally, the appellant raises two issues for the first time on this appeal: the CFSA and VSA violate her freedom of conscience under s. 2(a) of the Charter and conflict with ss. 377 and 378 of the Criminal Code, R.S.C. 1985, c. C-46. We see no merit in either submission.

Disposition

[16] The appeal is dismissed. The respondent does not seek costs; accordingly, there will be no costs order.

Appeal dismissed.