L.A. (Re), 2017 ONSC 597

CITATION: L.A. (Re), 2017 ONSC 597

COURT FILE NO.: A93/068

DATE: January 27, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: L.A., applicant

AND:

No named respondents

BEFORE: MITROW J.

COUNSEL: no one appearing

HEARD: in chambers

ENDORSEMENT

[1] The applicant brings a form 14B motion for an order pursuant to s. 162(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) for an order to unseal a London, Ontario adoption file for the purpose of obtaining a copy of the entire contents of the file as the applicant wishes to forward same to the “Fundación Chilena de la Adopción” in Chile in order to be presented to the Supreme Court of Chile.

[2] In support of the motion, the applicant files two affidavits and the applicant’s adopted daughter files an affidavit.

[3] The central facts giving rise to the motion are not complicated.

[4] However, the applicant’s motion does raise a number of legal issues. The applicant is self-represented. His material does not contain reference to any relevant jurisprudence.

[5] The applicant was born in Chile. He immigrated to Canada and has since become a Canadian citizen; however, he continues to hold a Chilean passport.

[6] The evidence is that the applicant’s daughter, M.A.A. (“M.”), was born in Chile, and that the adoption process had begun prior to moving to Canada. M., now age 25, and who resides in London, Ontario according to her affidavit, is a citizen of Canada and she holds a Canadian passport.

[7] A photocopy of M.’s adoption order is appended as an exhibit to the applicant’s affidavit: it is the order of Webster J., dated August 31, 1993, made in the Ontario Court (Provincial Division) at London. In the adoption order, the applicant and M.M.A. (presumably the applicant’s wife) are shown as the applicants and the adoption order states that “the above named child [being M.] is adopted as the child of the applicants.”

[8] The applicant then explains that he brought his present motion because the adoption order made in London was never “finalized” by “registering the adoption order in Chile.” The applicant further explains that he failed to “finalize” the adoption in Chile after the adoption order was made because of an “oversight” on his part.

[9] It is the applicant’s evidence that his daughter is entitled to dual citizenship and to hold a Chilean passport.

[10] The applicant deposes that he has made an application in recent years “to the country of Chile” to finalize the adoption. His daughter is registered in government records in Chile, and she has a unique “Civic Registration Number” which, as explained by the applicant, is equivalent to a social insurance number in Canada.

[11] The applicant then explains that when he produced the adoption order to Chilean authorities, that the Chilean records cannot “reconcile” the information in the adoption order because the order shows his daughter’s legal surname as “[A.],” which is her adopted name, whereas the Chilean records show the birth name.

[12] On this point, I do have some difficulty accepting the applicant’s explanation because the adoption order clearly sets out his daughter’s birth name and the date of birth.

[13] The jurisprudence suggests that there is high expectation of confidentiality and anonymity between members of the “adoption triangle,” being the birth parents, the adoptive parents and the adopted child: see Ferguson v. Director of Child Welfare, 1983 1725 (ON SC), 1983 CarswellOnt 1346 (Killeen, County Court Judge) at para. 66, affirmed on appeal, 1983 4522 (ON CA), 1983 CarswellOnt 341 (Ont. C.A.).

[14] The starting point is s. 162(2) of the CFSA which provides (subject to two subsections) that documents used on an application for an adoption order shall be sealed up together with a certified copy of the original order and shall not “be opened for inspection” except by court order. However, as discussed in some detail by Killeen J. in Ferguson, in a very thorough and well-reasoned judgment (“the trial reasons”), s. 162(2), which is the successor to the legislation considered by Killeen J., must be read having regard to the confidentiality of the adoption process, and further having regard to any specific provisions in the legislation that provide a mechanism for disclosure of information relating to an adoption.

[15] I set out s. 162 in its entirety:

Court papers

162. (1) In this section,

“court” includes the Superior Court of Justice.

Requirement to seal documents

(2) Subject to subsections (3) and 162.2 (2), the documents used on an application for an adoption order under this Part or a predecessor of this Part shall be sealed up together with a certified copy of the original order and filed in the court office by the appropriate court officer, and shall not be opened for inspection except by court order.

Transmission of order

(3) Within thirty days after an adoption order is made under this Part, the proper officer of the court shall cause a sufficient number of certified copies of it to be made, under the seal of the proper certifying authority, and shall transmit,

(a) the original order to the adoptive parent;

(b) Repealed: 2005, c. 25, s. 15 (3).

(c) one certified copy to the Registrar General under the Vital Statistics Act, or, if the adopted child was born outside Ontario, two certified copies;

(d) if the adopted child is an Indian, one certified copy to the Registrar under the Indian Act (Canada);

(e) one certified copy to such other persons as may be prescribed.

Other court files

(4) Unless the court orders otherwise, only the court may examine identifying information that comes from the records of any of the following persons that is contained in any court file respecting the judicial review of a decision made by any of them:

1. A designated custodian under section 162.1.

2. A person who, by virtue of a regulation made under clause 220 (1) (c.5), reviews or hears appeals of decisions concerning the disclosure of information under section 162.2 or 162.3.

3. A person referred to in subsection 162.2 (1) or 162.3 (1).

Same

(5) No person shall, without the court’s permission, disclose identifying information described in subsection (4) that the person obtained from the court file.

Definition

(6) In subsections (4) and (5),

“identifying information” means information whose disclosure, alone or in combination with other information, will in the circumstances reveal the identity of the person to whom it relates.

[16] It can be seen that s. 162(2) is subject to ss. (3) and 162.2(2).

[17] The legislative scheme in the CFSA for disclosure creates designations for custodians of information and the right of a custodian of information to receive and deal with information relating to adoptions. These provisions are found in sections 162.1 to 162.4:

Designation of custodians of information

162.1 (1) The Lieutenant Governor in Council may, by regulation, designate one or more persons to act as custodians of information that relates to adoptions and may impose such conditions and restrictions with respect to the designation as the Lieutenant Governor in Council considers appropriate.

Powers and duties

(2) A designated custodian may exercise such powers and shall perform such duties as may be prescribed with respect to the information provided to the custodian under this Act.

Same, disclosure of information

(3) A designated custodian may exercise such other powers and shall perform such other duties as may be prescribed for a purpose relating to the disclosure of information that relates to adoptions, including performing searches upon request for such persons, and in such circumstances, as may be prescribed.

(4) Repealed: 2008, c. 5, s. 12.

Agreements

(5) The Minister may enter into agreements with designated custodians concerning their powers and duties under this section and the agreements may provide for payments to be made to the designated custodians.

Disclosure to designated custodian

162.2 (1) The Minister, the Registrar General under the Vital Statistics Act, a society, a licensee and such other persons as may be prescribed shall give a designated custodian under section 162.1 such information that relates to adoptions as may be prescribed in such circumstances as may be prescribed.

Same, adoption orders

(2) A court shall give a designated custodian a certified copy of an adoption order made under this Part together with such other documents as may be prescribed in such circumstances as may be prescribed.

Disclosure to others

By the Minister

162.3 (1) The Minister shall give such information that relates to adoptions as may be prescribed to such persons as may be prescribed in such circumstances as may be prescribed.

By a society

(2) A society shall give such information that relates to adoptions as may be prescribed to such persons as may be prescribed in such circumstances as may be prescribed.

By a licensee

(3) A licensee shall give such information that relates to adoptions as may be prescribed to such persons as may be prescribed in such circumstances as may be prescribed.

By a custodian

(4) A designated custodian under section 162.1 shall give such information that relates to adoptions as may be prescribed to such persons as may be prescribed in such circumstances as may be prescribed.

Scope of application

162.4 Sections 162.2 and 162.3 apply with respect to information that relates to an adoption regardless of when the adoption order was made.

[18] A comprehensive regulation dealing with adoption information disclosure, being O. Reg. 464/07, was enacted pursuant to the CFSA. This regulation includes the following:

a) The regulation designates, pursuant to s. 162.1(1) of the CFSA, the following as custodians of adoption information:

i. the Director of the Operational Support Branch at the Ministry of Community and Social Services (“MCSS custodian”); and

ii. the Director of the Contact Centre Services Branch at ServiceOntario, a part of the Ministry of Government Services (“ServiceOntario custodian”).

b) Section 2.1 of the regulation deals with the interplay of information disclosure under the regulation and the Vital Statistics Act;

c) The duties and responsibilities of the MCSS custodian and ServiceOntario custodian are defined;

d) The regulation creates a voluntary disclosure registry for adopted persons, birth parents and other persons related by birth to the adopted person;

e) The regulation contains provisions dealing with disclosure of non-identifying information on application of an adopted person, adoptive parent, birth parent and other named persons related by birth to the adopted person;

f) The regulation deals with disclosure of information in some specific circumstances where the adoption order was made outside of Ontario; and

g) The regulation provides for search and disclosure of information in a case of severe medical illness.

[19] Finally, the Vital Statistics Act, in ss. 48.1 to 48.7, deals with disclosure by the Registrar General concerning information relating to adopted persons that is kept by the Registrar General under that Act. These sections include provisions for birth parents or an adopted person to submit a notice of a preferred manner of contact or to submit a notice not to be contacted at all.

[20] The leading authority is the decision in Ferguson, supra.

[21] Justice Killeen was faced with an application by Ms. Ferguson, who was age 53 and married with children. Ms. Ferguson had been placed for adoption by her mother shortly after birth. Ms. Ferguson had very little knowledge of her birth family. She sought an order to compel the Director of Child Welfare to produce and disclose the contents of the adoption file to her, showing the name of her birth parents and all medical information concerning each of them. The relevant predecessor section discussed in Ferguson was s. 80(1) of the Child Welfare Act as summarized in the Court of Appeal decision at para. 2:

80(1) Subject to subsection 81(6), the documents used upon an application for an adoption order shall be sealed up and filed in the office of the court by the proper officer of the court and shall not be open for inspection except upon an order of the court or the written direction of a Director.

[22] Section 80(1) of the Child Welfare Act is the counterpart of the current s. 162(2) of the CFSA. As can be seen, the current section is quite similar to s. 80(1), with the most notable exception being that, under the current section, only the court can require the adoption file to be opened for inspection.

[23] In Ferguson, Killeen J., at para. 42 in his trial reasons, did set out the adoption disclosure provisions contained in s. 81 of the Child Welfare Act:

81(1) In this section, "Director" means an employee of the Ministry appointed by the Minister for the purposes of this section.

(2) An adopted child who is eighteen or more years of age and a person who was a parent of an adopted child at the time of the child's birth where the adoption took place in Ontario in each instance may apply to a society to be registered in a voluntary disclosure registry that shall be maintained by the Director.

(3) Every society that receives an application under subsection (2) shall forthwith forward a copy of the application to the Director who shall enter the applicant's name in the voluntary disclosure registry.

(4) Notwithstanding the provisions of any other Act, no person shall inspect, remove, disclose, transmit or alter or permit the inspection, removal, disclosure, transmission or alteration of information maintained in the voluntary disclosure registry established under subsection (2), except with the written permission of the Director.

(5) The Director shall upon entering an applicant's name in the voluntary disclosure registry examine the registry to determine,

(a) where the applicant is an adopted child, if a person who was the child's parent at the time of the child's birth is named in the registry; or

(b) where the applicant is a person who was a parent of an adopted child at the time of the child's birth, if the adopted child is named in the registry.

(6) Where the Director,

(a) determines that both an adopted child and a person who was the child's parent at the time of the child's birth are named in the voluntary disclosure registry;

(b) obtains from any living person who was the parent of the child after an adoption order with respect to the child was made, consent to the disclosure of information pursuant to this section; and

(c) obtains a confirmation from each of the parties referred to in clause (a) that they agree to the disclosure of information pursuant to this section,

the Director shall forthwith forward to the appropriate society the information contained in,

(d) the documents referred to in subsection 80(1); and

(e) the voluntary disclosure registry,

with respect to the adopted child and the person who was the child's parent and the society shall provide the information to the adopted child and the person who was the child's parent.

(7) Every society shall provide guidance and counselling to persons who may be registered in the voluntary disclosure registry referred to in subsection (2).

[24] In his trial reasons, Killeen J. discussed the historical origins of s. 80(1), noting that the original version appeared in the 1927 version of the Adoption Act, but that the origin of this subsection was “obscure” with no records being found from that time as to why the section was included (para. 51).

[25] This led Killeen J. to note the dearth of jurisprudence as to the powers of a judge, under s. 80(1); in fact, it was noted by Killeen J. that both counsel “candidly admitted” their inability to find any Ontario case dealing directly with the scope of a judge’s discretion under s. 80(1) (para. 63).

[26] In my view, and relevant to the present case, Killeen J. did attribute significant weight to the presence of the disclosure provisions in s. 81. He found that primacy must be accorded to s. 81, which becomes a code for disclosure. If s. 81 is to have primacy, then Killeen J. reasoned that the court’s power in s. 80(1) must be exercised most cautiously. In paras. 83 and 84, Killeen J. states:

The breadth of the language of s. 80(1) as to the disclosure powers of a judge leaves it open to two or more alternative constructions. I feel compellingly required to consider s. 81 in my assessment of the scope of my powers under s. 80(1): the opening words of s. 80(1) directs me to do so and, in any event, the two sections are logically interrelated dealing, as they both do, with the disclosure of the contents of adoption documentation. In this light, so far as disclosure of information to or as between members of the adoption triangle is concerned, primacy must be accorded to the provisions of s. 81. Thus, s. 81 becomes, on this approach, a code for the disclosure of information about adoptees and natural parents. (my emphasis)

Should this code yield in a most limited or, rather, in an almost unbridled way, to the court's powers of disclosure under s. 80(1)? If the code is to have primacy, as I think it does, then, obviously, the court's powers in s. 80(1) must be exercised most cautiously to avoid draining the registry system of useful content. The mere fact that the registry system appears not to be working as well as it might ought not to influence the court. That fact is for the government and legislature to address and not for the court. A court must not place itself in a position where it elects to make a legislative choice under the guise of statutory construction.

[27] Ultimately, Killeen J. concluded that a judge should only intervene in the disclosure process under s. 80(1) “in the most exceptional circumstances” (para. 85).

[28] On the facts, Killeen J. concluded that Ms. Ferguson’s “natural curiosity” to know more about herself and her roots did not satisfy the “exceptional circumstances” rule and consequently the application was dismissed (paras. 88, 91).

[29] The Court of Appeal in Ferguson referred to Killeen J.’s “lengthy reasons” as disclosing a “careful and anxious consideration of the problem” (para. 1).

[30] At para. 7, in reference to s. 80(1) of the Child Welfare Act, the Court of Appeal notes that the Ontario legislation does provide for confidentiality, that an order should not be issued simply upon the demand of the parties and that sufficient cause must be shown why such an order should be made. The Court of Appeal concludes at para. 7 that:

… this sufficient cause must be a cause of such gravity and importance to displace the statutory rights of the other parties as well as the interest of the province in maintaining the integrity of the adoption system. In our view, Judge Killeen was expressing the same concept when he spoke of “exceptional circumstances.”

[31] The Court of Appeal found no error in Killeen J.’s conclusions (para. 9).

[32] The applicant’s evidence includes, further, that he has another daughter, who also was born in Chile and adopted. He deposes that his daughters have seen the adoption orders and that they have travelled to Chile and were shown the areas where they were born. The applicant states that the birth father was not known and that the applicant is familiar with the documentation that was provided when the original order was made.

[33] In Re A.(L.), 2014 ONCJ 558 (OCJ), Sheilagh M. O’Connell J., had a very similar case before her in the Ontario Court of Justice. In that case as reported, the applicant’s first name is disclosed and his surname is initialized. That information is consistent with the name of the applicant in the present case. Also, the relief sought was identical, namely to forward the entire contents of the file to the same agency in Chile.

[34] It is noted that O’Connell J. released her decision over two years ago on October 27, 2014. I reproduce paras. 1 – 4 of the decision to illustrate the similarity:

1 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 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 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. 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 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 1725, 40 O.R. (2d) 294, 142 D.L.R. (3d) 609, [1983] O.J. No. 2920, 1983 CarswellOnt 1346 (Ont. Co. Ct.); affirmed at Ferguson v. Ontario Director of Child Welfare, 1983 1909, 44 O.R. (2d) 78, 1 O.A.C. 236, 3 D.L.R. (4th) 178, 36 R.F.L. (2d) 405, 41 C.P.C. 217, [1983] O.J. No. 3238, 1983 CarswellOnt 341 (Ont. C.A.).

[35] O’Connell J. then concludes at para. 7:

7 In 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.

[36] The motion was then adjourned by O’Connell J. to a hearing date to be set before her, so that the adoptive father could provide the required information.

[37] As a post-script to the apparent companion case in the Ontario Court of Justice, the applicant has filed a further affidavit in the present London proceeding sworn January 4, 2017.

[38] The applicant deposes that the documents required by the Chilean authorities will include certified copies of the report on the adjustment of the child in the adoptive home, and the recommendations of the Director.

[39] The applicant then deposes that he obtained an order in the Ontario Court of Justice for his older daughter and that this order is the same as the order that he is requesting in the London proceeding. The applicant attaches as an exhibit the handwritten endorsement of the judge (not O’Connell J.) who made the order. The date of the endorsement is partially cut off in the copy, but it appears to be in 2017. It is the applicant’s evidence that he obtained this order in the Ontario Court of Justice in Milton. Although the endorsement contains no file number, the name of the male applicant on the endorsement sheet is the same as the applicant in the London case, and also there is a co-applicant, who appears to be the applicant’s spouse, having the same name as the co-applicant named in the London adoption order.

[40] It is unclear whether that order was on the same file as the order of O’Connell J., or whether the applicant brought a similar proceeding in another location of the Ontario Court of Justice.

[41] The applicant did not include a signed and issued copy of the order. The brief endorsement appended to the applicant’s affidavit states that the court has unsealed the file again to release to the applicant copies of all documents that he wishes that were relied on by Fuller J. in granting the adoption; the endorsement provides that the file will be re-sealed and that certified copies of the documents are to be provided to the applicant.

[42] If indeed this was the same case that was before O’Connell J., as it appears to be, there was no evidence provided by the applicant as to what additional material was filed.

[43] The primary reason for the motion in the London court is to permit the applicant’s daughter to “confirm” her Chilean status as a dual citizen and to obtain her Chilean passport.

[44] The order requested by the applicant should only be granted if the applicant can establish “exceptional circumstances.” The legislature, as discussed previously, has by statute and regulation enacted provisions for disclosure of adoption information – provisions which are substantially more detailed than the provisions that existed when Ferguson was decided. The order sought by the applicant has the practical effect of circumventing the procedures in place according to statute and regulation in relation to adoption information disclosure.

[45] I am unable to find “exceptional circumstances” on the evidence. I have many of the same concerns as O’Connell J. Confidential documents are to be given to, and seen by, a number of unnamed individuals who will translate the documents and then give the documents to unknown persons in Chile. There is no affidavit evidence from any Chilean officials, with knowledge and authority, explaining why the entire file has to be copied, and why a certified copy of an adoption order is not sufficient. That evidence is important and should have been provided.

[46] The applicant did file as an exhibit a letter in English from his Chilean lawyer dated July 17, 2015; however, respectfully, the letter is at times difficult to read as it appears that the author may not be entirely familiar with proper use of the English language and grammar. In any event, given the nature of the relief sought, any legal opinions from Chilean, or other, lawyers should be in affidavit form, in a language that the deponent is proficient in and, if necessary, the affidavits should be translated.

[47] In the circumstances, I dismiss the applicant’s motion but on a without prejudice basis as noted below.

[48] Although, respectfully, my order may appear to conflict with the order made in the Ontario Court of Justice, I can only decide the case before me based on the evidence filed. Further, I have no information as to what additional evidence was before the Ontario Court of Justice, nor any reasons for the decision. Further, there is no evidence whether the applicant made any disclosure to the Ontario Court of Justice of the pending proceeding in this court.

[49] In all the circumstances, the order below is without prejudice to the right of the applicant to bring a fresh proceeding in this court if he can provide a better evidentiary record that addresses the concerns discussed and that establishes “exceptional circumstances.” Further, in my view, it is improper, procedurally, to start a fresh proceeding via a form 14B motion. An application should be issued.

[50] In Ferguson, both courts had the benefit of submissions from the Director. The order below provides for notice to be given to the MCSS custodian and to the ServiceOntario custodian as defined in the regulation dealing with adoption information disclosure, in the event they wish to participate and make submissions.

[51] Finally, the foregoing discussion leaves one further issue to be dealt with. Section 162(2) permits the file to “be opened for inspection.” There is nothing in that section that authorizes the court to allow copies of documents to be made from the file or to circulate the file contents to others. If the applicant does bring this matter back to this court, then the applicant will need to address that issue.

ORDER

[52] For reasons set out above, I order as follows:

1. The applicant’s motion to unseal the adoption file is dismissed.

2. Paragraph 1 of this order is without prejudice to the applicant’s right, within six months, to bring a fresh proceeding for the same relief, in this court, that addresses the issues raised in the reasons dismissing the motion.

3. The clerk of this court forthwith shall forward the signed and issued order and reasons by fax to the following and file proof of service:

i. the Director of the Operational Support Branch at the Ministry of Community and Social Services (MCSS custodian), as named in s. 3(1) of O. Reg. 464/07 dealing with adoption disclosure information;

ii. the Director of the Contact Centre Services Branch at ServiceOntario, a part of the Ministry of Government Services (ServiceOntario custodian); and

iii. the Crown Law Office (Civil Division) of the Ministry of the Attorney General.

4. If the applicant commences a fresh proceeding pursuant to paragraph 2 of this order, then:

i. all persons named as applicants in the adoption order shall be named as applicants in the fresh proceeding;

ii. the fresh proceeding shall be commenced by application, but the application may be heard on the basis of affidavit evidence only;

iii. the application, and any supporting affidavits and other documents, together with a signed and issued copy of this order, and the reasons, shall be served on the Director of the Operational Support Branch at the Ministry of Community and Social Services (MCSS custodian) and the Director of the Contact Centre Services Branch at ServiceOntario, a part of the Ministry of Government Services (ServiceOntario custodian), by leaving copies of said documents with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General, and proof of service shall be filed;

iv. if either Director wishes to participate in the application, then prior to the return date of the application, that Director shall forward a letter to the court indicating the Director’s intention to participate in the proceeding, and the Director shall file any material that the Director relies on prior to the return date of the application, or such other date as permitted by the court.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 27, 2017