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Copyright 2000: Queens Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER A-3

AN ACT RESPECTING THE ADOPTION OF CHILDREN

Analysis

1. Short title

2. Definitions

3. Application

4. Offences

5. No time

6. Supporting statements

7. Filing

8. Consent of director

9. Agreement to child being in director's care

10. Consent required

11. Consent not required

12. Termination of agreement

13. Sections not to apply

14. Further information

15. Certificate of director

16. Notice of director

17. Appeal to board

18. Appeal to court

19. Adoption order

20. Effect of order

21. Interim order

22. New adoption order

23. Jurisdiction of court

24. Adoption out of province

25. Appeal

26. Register

27. Status of children

28. Disclosure

29. Child care subsidy

30. Regulations

31. Forms

32. Payments


Short title

1. This Act may be cited as the Adoption of Children Act.

1972 No36 s1

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Definitions

2. In this Act

(a) "adopted child" means a child whose adoption has been authorized under this Act;

(b) "adopting parent" means a person authorized under this Act to adopt a child;

(c) "adoption order" means an order made under this Act authorizing an applicant to adopt a child;

(d) "appeal board" means the Adoptions Appeal Board constituted under section 17;

(e) "application" means an application for an adoption order, and "applicant" has a corresponding meaning;

(f) "child" means a person who is under the age of 19 years;

(g) "department" means the Department of Social Services;

(h) "director" means the Director of Child Welfare and includes the Assistant Director of Child Welfare;

(i) "interim order" means an interim order referred to in section 21;

(j) "judge" means a judge of the Trial Division and a Provincial Court judge;

(k) "minister" means the Minister of Social Services;

(l) "registrar general" means the Registrar General of Vital Statistics referred to in the Vital Statistics Act; and

(m) "social worker" means a social worker of the department.

1972 No36 s2; 1973 No31 Sch; 1974 No101 s3;
1986 c42 Sch B

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Application

3. (1) Where an application for an adoption order is made by a person who is not married, a judge may, subject to this Act, make an order authorizing the applicant to adopt that child.

(2) Where an application for an adoption order is made by a husband and a wife jointly, a judge may make the order authorizing them jointly to adopt, but otherwise an adoption order shall not be made authorizing more than 1 person to adopt a child.

(3) A person shall not receive a child into a home or otherwise take the care and custody of a child with a view to adopting that child except with the prior written approval of the director unless that person is

(a) a mother or father of the child; or

(b) a mother, father, sister, brother, aunt or uncle of a mother or father of the child.

(4) A person who violates subsection (3) or consents to the violation is guilty of an offence and liable on summary conviction to a fine not exceeding $100 or, in default of payment, to imprisonment for a term not exceeding 1 month, or to both a fine and imprisonment.

(5) A father or mother or another person who, without the prior written consent of the director,

(a) allows or agrees to allow a child to be taken into another person's home; or

(b) otherwise gives up or agrees to give up the care and custody of a child,

with a view to the adoption of the child by a person other than a person referred to in paragraph (3)(b) is guilty of an offence and liable on summary conviction to a fine not exceeding $2,000 or, in default of payment, to imprisonment for a term not exceeding 1 month, or to both a fine and imprisonment.

(6) Where a person has been convicted of an offence under subsection (4) or (5), the judge may declare that the child in respect of whom the offence was committed is a neglected child.

1972 No36 s4; 1974 No9 s2; 1974 No101 s2;
1988 c39 s2

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Offences

4. A person who gives or receives or agrees to give or to receive a payment or reward, directly or indirectly,

(a) in consideration of the adoption of a child; or

(b) to obtain a child for the purpose of adoption

is guilty of an offence and liable on summary conviction to a fine not exceeding $2,000 or, in default of payment, to imprisonment for a term not exceeding 3 years, or to both a fine and imprisonment.

1972 No36 s5

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No time

5. Notwithstanding section 8 of the Summary Proceedings Act, proceedings in a prosecution for an offence under section 3 or 4 of this Act may be instituted at any time.

1974 No9 s3; 1979 c35 Sch A

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Supporting statements

6. An application shall be supported by written statements of the fitness of each applicant to adopt the child by residents of the province who are acquainted with the applicant or by other documents that the judge in his or her discretion may require.

1972 No36 s6

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Filing

7. (1) An application and documents to be used in connection with the application shall be filed in the office of the judge.

(2) Copies of the application and documents referred to in subsection (1) shall be served upon the director, and, unless the director otherwise consents in writing, an adoption order shall not be made unless the director has been served with notice of it and is either represented or has expressed in writing his or her intention of not being represented.

(3) A social worker may present the documents to the court on behalf of the applicants and may represent the director at the hearing of an application.

1972 No36 s7; 1974 No101 s3

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Consent of director

8. Except with the written consent of the director, an adoption order shall not be made in a case where

(a) the applicant is under the age of 25 years; or

(b) the applicant is less than 25 years older than the child in respect of whom the application is made.

1972 No36 s8; 1979 c39 s2; 1988 c39 s2

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Agreement to child being in director's care

9. (1) The director may enter into an agreement in writing with a parent or a person, who in fact has custody of a child, by which the parent or that other person voluntarily gives up all his or her rights in respect of the child to the director for the purpose of placing the child for adoption.

(2) An agreement under subsection (1)

(a) operates as the consent of the person referred to in subsection (1) to the adoption of the child; and

(b) confers on the director the rights of custody in respect of the child so as to enable the director to have the care and custody of the child pending the adoption and to place the child in a home for the purpose of adoption.

(3) Where a person who is under 19 years of age enters into an agreement under this section that agreement shall be considered to be valid.

(4) The provisions of this section shall not apply to require the consent or agreement of a foster parent to the placement or the adoption of a child.

1990 c20 s1

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Consent required

10. (1) An adoption order shall not be made without the written consent of

(a) the child proposed to be adopted, where the child is 12 years of age or older and capable of giving an informed consent;

(b) every parent whose name appears on the record of birth of the child in the jurisdiction in which the child was born; and

(c) a person who has been declared to be a parent of that child by a court or who has an order for custody of or access to the child to be adopted or who has filed an application for a declaration or order with a court.

(2) Where the child proposed to be adopted is a child who is the subject of an agreement under section 9, the consent of a person referred to in paragraph (1)(c) shall not be required unless that person has given the director written notice of the declaration, order or application within 30 days of the date of the child coming into the care of the director under an agreement under section 9.

(3) Where a child has been committed permanently to the care and custody of the director under the Child Welfare Act, the only consent required to the adoption of that child is that of the director and of the child where he or she is 12 years of age or older and capable of giving an informed consent.

(4) The consent of a parent under the age of 19 years to the adoption of his or her child shall be considered to be valid.

1990 c20 s1; 1990 c62 s2

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Consent not required

11. (1) Where a consent required by this Act has not been given, a judge may make an order dispensing with the consent where he or she determines that it would be in the best interests of the child to do so having regard to the circumstances, including

(a) that the person who would give the consent

(i) may be dead,

(ii) is not capable of giving an informed consent, or

(iii) cannot be located despite reasonable efforts to do so; or

(b) that the person whose consent would normally be required is not a concerned parent.

(2) In this section "concerned parent" means

(a) a parent who has in fact the care of a child or who has legal custody of a child;

(b) a parent who regularly exercises rights of custody or access in relation to the child or attempts to exercise those rights; or

(c) a parent who regularly provides financial support for the child.

1990 c20 s1

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Termination of agreement

12. (1) A person entering into an agreement under section 9 or giving a consent to adoption required by this Act may within 21 days of entering into the agreement or giving the consent withdraw it in writing.

(2) Where a child has not been placed in a home for the purposes of adoption, the person who made the agreement under section 9 may terminate the agreement with the consent of the director.

(3) Where a child is in a home for the purpose of adoption as a result of an agreement under section 9, that agreement cannot be terminated unless, on an application to a judge to terminate the agreement, the applicant satisfies the judge that it is in the best interests of the child to do so by order.

(4) An adoption order under this Act shall not be set aside unless it is in the best interest of the child adopted to do so.

(5) An agreement or a consent under this Act is not valid unless the child was at least 7 days old at the time the consent was given or the agreement entered into.

1990 c20 s1

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Sections not to apply

13. The provisions of sections 9, 10, 11 and 12 shall not apply to a child who comes into the care of the director for the purposes of an adoption before October 1, 1990.

1990 c20 s1

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Further information

14. A judge may require further information and consents to be obtained as to a matter affecting the adoption of a child and may direct investigation as to the physical, mental and moral fitness of the child or the adopting parents.

1972 No36 s10

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Certificate of director

15. An adoption order shall not be made unless the director certifies in writing

(a) that the child has lived with the applicant for at least 6 months immediately prior to the date of the application and that, during that period, the conduct of the applicant and the conditions under which the child has lived have been such as to justify the making of the order; or

(b) that the applicant is, to the knowledge of the director, an appropriate person to have the care and custody of the child and that for reasons set out in the certificate the period of residence may be dispensed with.

1972 No36 s11

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Notice of director

16. Where the director decides not to give

(a) the approval referred to in subsection 3(3);

(b) the consent referred to in subsection 8(1); or

(c) the certificate referred to in section 15,

the director shall, as soon as reasonably possible after he or she has reached the decision, communicate, in writing, the decision to the person or applicant concerned, and the communication shall have attached to it a copy of section 17.

1973 No50 s2

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Appeal to board

17. (1) The Lieutenant-Governor in Council shall appoint an Adoptions Appeal Board, consisting of 3 persons who are not employees of the government of the province or of a board, commission, corporation or other body, incorporated or unincorporated, which is an agency of the Crown or is carrying out a function usually carried out by the Crown or by the government of the province.

(2) The members of the appeal board shall be appointed from persons having the qualifications prescribed by the regulations, and the Lieutenant-Governor in Council shall designate 1 of the members as chairperson.

(3) A person or applicant who feels aggrieved by a decision of the director respecting a matter referred to in section 16 may appeal from the decision to the appeal board, and the appeal board shall notify the person or applicant of the time the appeal shall be heard by it.

(4) The appeal board shall, upon the conclusion of the hearing, confirm or set aside the decision of the director and may give directions consistent with this Act or the regulations respecting the granting or refusal of the approval, consent or certificate concerned as the appeal board considers appropriate.

(5) A member of an appeal board shall be appointed for a period of 1 year, and is eligible to be reappointed, but he or she may be removed for cause.

(6) The members of the appeal board shall be paid the remuneration and expenses that may be prescribed by the regulations.

(7) Each member of the appeal board shall, before entering upon the duties of office, take and sign the following oath or affirmation of office before a person authorized to administer oaths or affirmations:

"I, A.B., do solemnly swear (or solemnly, sincerely, truly declare and affirm) that I will truly and faithfully, and impartially, to the best of my knowledge, skill and ability, execute and perform the duties of a member of the Adoptions Appeal Board appointed under the Adoption of Children Act, and will not, except in the discharge of my duties, disclose the evidence or other matter brought before the Appeal Board." (Where an oath is taken, add "So help me God".).

(8) Hearings of the appeal board shall normally be held in St. John's, but, where the minister directs, hearings may be held at another place in the province specified by the minister in his or her discretion.

(9) Where the decision of the appeal board is not unanimous, the decision of 2 members of it constitutes the decision of the appeal board.

(10) An officer, clerk or employee in the department designated for the purpose by the minister shall be the secretary of the appeal board, and that secretary shall keep a record of the proceedings of the appeal board and a copy of each communication made under subsection (19).

(11) A person or applicant appealing to the appeal board under this section is entitled to appear before the board, either personally or by a representative designated in writing, for the purpose of presenting the person's case and producing evidence.

(12) Where

(a) the office of chairperson of the appeal board becomes vacant; or

(b) a member of the appeal board stops being a member of it,

the Lieutenant-Governor in Council shall immediately fill that vacancy.

(13) The chairperson of the appeal board shall preside at meetings of the appeal board.

(14) Hearings of the appeal board shall be held in private.

(15) The testimony of witnesses before the appeal board shall be given under oath or affirmation administered by a member of the board, and, for the purposes of a hearing, the board, and each member, is vested with the powers that are or may be conferred on a commissioner by the Public Inquiries Act.

(16) The appeal board is considered to be an "investigating body" for the purposes of the Public Investigations Evidence Act, and there shall be full right to examine and cross-examine witnesses called and to bring forward evidence in defence and reply, and the provisions of section 3 of the Public Inquiries Act shall apply to the witnesses.

(17) Where the person appealing to the appeal board under this section does not, in person or by a representative designated under this section, attend the hearing of the appeal after being notified in accordance with this section, unless the failure to attend is due to circumstances beyond his or her control and he or she has, by written notice, advised the board that the person wishes to attend and sets out in the notice the circumstances which prevent the person from attending, the board may proceed in that person's absence to examine the matter of the appeal and to hear the witnesses, and adjudicate on the matter.

(18) The secretary of the appeal board shall notify, in writing, officials of the department affected by a finding or decision of the board of the finding or decision.

(19) The appeal board shall communicate, in writing, its finding or decision made under subsection (4) to the person or applicant who appealed within a reasonable time after the finding or decision has been made.

1973 No50 s2

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Appeal to court

18. (1) A person or applicant dissatisfied with a finding or decision of the appeal board may appeal from it to a judge of the Trial Division.

(2) Where a person proposes to appeal under subsection (1), the person shall, within 30 days after communication to him or her under subsection 17(9) of the finding or decision from which the person proposes to appeal, serve on the secretary of the appeal board a written notice of his or her intention to appeal.

(3) A notice of appeal served under subsection (2) shall be signed by the appellant or by the appellant's solicitor or agent, and, in the notice, the grounds of the appeal shall be set out, and the appellant shall file a copy of the notice in the office of the Registrar of the Supreme Court.

(4) The appellant shall, not less than 14 days before the hearing of the appeal, serve upon the secretary of the appeal board a written notice of the day appointed for the hearing.

(5) The judge shall hear the appeal and the evidence brought forward by the appellant and the Crown in a summary manner and shall decide the matter of the appeal, and the judge may confirm, vary or set aside the finding or decision of the appeal board or make the order, direction or decision in the matter that the judge considers advisable.

(6) The appeal board shall produce before the judge on the hearing of the appeal papers and documents in its possession affecting the matter of the appeal.

(7) The costs of the appeal are in the discretion of the judge, and the judge may make an order respecting them in favour of or against the Crown and may fix the amount, and the Crown holds itself bound by the order.

1973 No50 s2; 1974 No57 Sch C; 1986 c42 Sch A

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Adoption order

19. (1) A judge, where satisfied of the ability of the applicant to fulfil the obligations and perform the duties of a parent towards the child and the propriety of the adoption having regard to the best interests of the child, may make an adoption order authorizing the applicant to adopt the child.

(2) An adoption order shall be on a form prescribed by the regulations and supplied by the director without charge.

1972 No36 s12; 1988 c54 s2

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Effect of order

20. (1) An adoption order

(a) takes away legal rights from the natural parent, guardian or person in whose custody the adopted child has been and frees that person from legal obligations and duties in respect of the child;

(b) makes the adopted child, for all purposes, the child of the adopting parent; and

(c) imposes upon the adopting parent legal obligations and duties as if the adopting parent were the natural parent of the child from the date of the adoption order.

(2) The adopted child shall, unless otherwise ordered by the judge, receive the surname of the adopting parent.

(3) In the adoption order the judge may, in his or her discretion, give to the adopted child a first name requested by the applicant in the application.

(4) In the adoption order the judge may, in his or her discretion, where requested by the applicant in the application, order that the place of birth of the adopted child shall be

(a) entered in the Adopted Children Register; and

(b) shown on a birth certificate prepared under

section 26 as some place, to be specified in the order, other than the actual place of birth of the adopted child.

1972 No36 s14

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Interim order

21. (1) Upon an application for an adoption order, the judge may postpone the determination of the application and may make an interim order, which is not an adoption order for the purposes of this Act, giving the custody of the child to the applicant for a period not exceeding 2 years by way of a probationary period upon the terms as regards provision for the maintenance, education and supervision of the welfare of the child and otherwise that the judge considers appropriate.

(2) The consents that are required for an adoption order are necessary to an interim order but subject to a like power on the part of the judge to dispense with the consent.

1972 No36 s15

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New adoption order

22. (1) An adoption order or an interim order may be made in respect of a child who has already been the subject of an adoption order and, upon an application for the further order, the adopter under the adoption order last made shall, if living, be considered to be the parent of the child for the purposes of this Act.

(2) In the case of a child previously adopted, legal consequences of the former adoption order shall, upon a later adoption, determine except where a right, title or interest in property may have vested in law or equity in the adopted child.

1972 No36 s16

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Jurisdiction of court

23. (1) The court having jurisdiction to make adoption orders shall be the Trial Division or, at the option of the applicant, but subject to the regulations, a Provincial Court judge within the jurisdiction of which either the applicant or the child lives at the date of the application for the adoption order.

(2) An application under this Act shall be dealt with by the judge in chambers and may be heard in private.

(3) For the purpose of an application under this Act and subject to the regulations, the court shall appoint a person or body to act as guardian of the child upon the hearing of the application with the duty of safeguarding the interests of the child before the court.

1972 No36 s17; 1974 No57 s38 (264(a));
1986 c42 Sch B

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Adoption out of province

24. Where a person has been adopted

(a) in;

(b) according to the law of; and

(c) while

(i) domiciled, resident, or having been born, in, or

(ii) the adoptive parent was domiciled or resident in

another province, state or country, the person and his or her adoptive parent have in this province the same status, rights and duties as if the adoption had been in accordance with this Act.

1972 No36 s18

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Appeal

25. (1) A person aggrieved by an order of a judge under this Act, or by the refusal of a judge to make an order, may appeal from the decision granting or refusing the order,

(a) where the judge is a judge of the Trial Division to the Court of Appeal; and

(b) where the judge is a Provincial Court judge to the Trial Division,

and the provisions of the Judicature Act or the Summary Proceedings Act and the applicable rules of court shall govern the proceedings on the appeal.

(2) The court to which appeal is made may set aside or confirm the order referred to in subsection (1) or may make an order that a judge under this Act can make or may, by order directed to the judge from whom the appeal is taken, require that judge to make an order as the circumstances of the case may require.

(3) Notwithstanding another Act or law, an action or proceeding to set aside an adoption order conferred by that other Act or law shall not be started after the expiration of 1 year from the date of the order, and no setting aside of the order under the action or proceeding started within that period of 1 year shall be made unless it is in the best interests of the child concerned to do so.

1972 No36 s19; 1974 No57 s38 (263(2)Sch D);
1974 No.57 s38 (264(a)); 1979 c34 Sch;
1986 c42 Sch B

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Register

26. (1) The registrar general shall establish and maintain at the public registry at St. John's a register to be called the Adopted Children Register, in which shall be made those entries that may be directed to be made in it by adoption orders, but no other entries.

(2) An adoption order, together with the documents used in the application, shall be filed in the office of the judge, and 2 copies of the order certified by the judge shall be forwarded to the director, and the director shall forward 1 of the certified copies to the registrar general, who shall record the order and make the change in the records required by the adoption order.

(3) Where, upon an application for an adoption order, there is proved to the satisfaction of the court

(a) the date of the birth of the child; and

(b) the identity of the child with a child to which an entry in the register of births relates,

the adoption order shall contain a further direction to the registrar general to mark the birth and entry in the register of births with the word "adopted", and to include in the entry in the adoption register recording the adoption the date stated in the order of the adopted child's birth.

(4) The adoption order, the application, the documents filed and the record of proceedings in relation to the application shall not be made public or disclosed except upon the direction of a judge or the director.

(5) The adoption order, the application, the documents filed and the record of proceedings in relation to the application shall be kept by the court or judge in a sealed packet, and papers in the custody of the director relating to the adopted child shall be kept by the director in a sealed packet, and neither packet shall be opened except upon the direction of a judge or the director.

(6) A person may not have the Adopted Children Register or an entry in it searched or obtain a certified extract from it except upon the permission of a court or judge.

(7) The registrar general may refer to the Adopted Children Register for the purpose of preparing a birth certificate requested by an adopted child or either of the adopting parents and the birth certificate shall be in the name given the adopted child by the adoption order and shall, where an order is made under subsection 20(4), show the place of birth as that specified in the order.

(8) Where a person born outside the province is adopted under this Act and an order is made under subsection 20(4), the registrar general shall indicate in a birth certificate of that person the place of birth as that specified in the order and the registrar general shall send a certified copy of the order and birth certificate to the person having charge of registration of births in the jurisdiction in which the adopted person was born.

(9) A certified copy of an entry in the Adopted Children Register, where purporting to be sealed or stamped with the seal of the registrar general, shall, without further or other proof of the entry,

(a) where the entry does not contain a record of the date of the birth of the adopted child, be received as evidence of the adoption to which the entry relates; and

(b) where the entry contains a record of the date of the birth of the adopted child, be received as evidence of the adoption to which the entry relates and of the date of the birth of the adopted child to which the entry relates

to the same extent as if the copy were a certified copy of an entry in the register of births.

(10) The registrar general shall make and keep an index of the Adopted Children Register and a person having permission under subsection (6) may have a certified copy of an entry in the Adopted Children Register subject to the same terms, conditions and regulations as to payment of fees and otherwise that are applicable under the Vital Statistics Act in respect of the supply by the registrar general of certified copies of entries in the registers of births, marriages and deaths.

(11) The registrar general shall, in addition to the Adopted Children Register and the index of it, keep other registers and books, and make entries in them that may be necessary to record and make traceable the connection between an entry in the register of births which has been marked "Adopted" as required by this Act, and a corresponding entry in the Adopted Children Register.

(12) The registers, books and indices shall not be open to public inspection or search nor, except under an order of a court, shall the registrar general provide a person with information contained in, or a copy or extract from the registers or books.

1972 No36 s20; 1977 c63 s1

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Status of children

27. The status of a child who has been adopted should be as set out in Part I of the Children's Law Act.

1988 c61 s83

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Disclosure

28. (1) An adopted person who is 19 years of age or older may apply to the minister for the release of information contained in his or her file or for information about other parties to the adoption.

(2) The minister shall authorize the release of information contained in the file that does not identify the other parties to the adoption and may release other information upon obtaining the consent to a release from a party that would be identified by the release.

1990 c20 s2; 1990 c62 s2

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Child care subsidy

29. Notwithstanding section 4, the minister may authorize the granting of a child care subsidy to the adopting parents of a child on the terms and conditions that may be prescribed by the regulations.

1990 c20 s2

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Regulations

30. (1) Subject to the approval of the Lieutenant-Governor in Council, the minister may make regulations

(a) prescribing forms for use under this Act;

(b) directing the manner in which applications to a judge shall be made under this Act;

(c) respecting procedure generally under this Act, including the procedure to be followed upon an application for an adoption order where not otherwise provided by this Act;

(d) respecting the granting of a child care subsidy to adopting parents;

(e) prescribing qualifications of persons for appointment as members of the appeal board, and different qualifications may be prescribed for different persons for appointment to the board;

(f) prescribing the time within which an appeal to the appeal board under section 17 may be taken;

(g) prescribing, for the purpose of section 17, the procedure on appeals and on the conduct of appeals;

(h) for giving effect to a finding or decision upon an appeal under section 17;

(i) providing for the payment by the province to members of an appeal board of remuneration and expenses;

(j) prescribing the time when and the manner in which findings or decisions of the appeal board shall be communicated to the persons concerned;

(k) respecting other matters relating to appeals under section 17 that appear necessary or desirable to ensure that the appeals are fully and properly considered and dealt with;

(l) providing for the holding of inquiries into the operation of this Act or into a charge or complaint that a person has contravened this Act or the regulations, or has made a false statement in a form required to be completed or made under this Act or the regulations, or into a matter arising in the administration of this Act;

(m) providing that the person holding the inquiry shall have one or all of the powers that are or may be conferred upon a commissioner by or under the Public Inquiries Act, including the power to take evidence under oath or affirmation; and

(n) generally, to give effect to the purpose of this Act.

(2) Regulations made under subsection (1) may be made with retroactive effect from a date stated in the regulations.

1972 No36 s24; 1973 No50 s3; 1990 c20 s3

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Forms

31. The department shall supply forms prescribed by the regulations and required for use under this Act.

1972 No36 s25

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Payments

32. Payments required to be made by or on behalf of the Crown in carrying out this Act or the regulations shall be paid by the Minister of Finance, on the request of the minister, out of the Consolidated Revenue Fund of the province.

1972 No36 s26

©Earl G. Tucker, Queen's Printer